Last month, the Supreme Court issued a unanimous opinion in Lewis v. City of Chicago. The Court held that a fire department’s decision to keep using results from an application exam in subsequent hiring decisions created Title VII liability. Why? Because the test had a disparate impact on African-American firefighters.
The City had argued that the statute of limitations had already run because the only discriminatory act was the placement of applicants into pools based on the test results. The Supreme Court rejected that argument, holding instead that the application of those classifications in subsequent hiring decisions constituted the start of the statute of limitations. In short, disparate impact liability attaches upon the application of a practice, not just its initial adoption.
The lesson for employers is pretty simple: Stop employment practices that have a disparate impact. So, if you’re an employer and you discover that the results of a promotion or hiring test disproportionately favor whites, should you stop? Having just discussed Lewis, you might be tempted to say “yes.” But, don’t forget about Ricci!
Last summer, the Supreme Court decided Ricci v. DeStefano. The Court held that New Haven was liable for race-based discrimination under Title VII for refusing to certify the results of a promotion exam. The City refused to certify the results when it discovered a racial disparity in the results. In short, the Court told the employer that it couldn’t ignore the test results based on race, and needed to keep going with the exam.
The trick for employers is knowing when to honor the test results and when to stop using the test. In Ricci, the Court held unequivocally that disparate statistics alone are not enough. The employer must have a “strong basis in evidence” to believe that the practice will result in disparate impact liability. Remember that an employer may successfully defend a disparate impact claim by demonstrating that the complained of practice is “job related for the position in question and consistent with business necessity.”
The combined lesson for employers from Lewis and Ricci is to examine ongoing practices and make an effort to assess the possibility of disparate impact liability. Just because an exam, or other practice, was adopted a long time ago doesn’t mean employers can just keeping using it. Meanwhile, employers cannot discriminate against a race by changing course when the racial statistics don’t come out as planned, unless there’s a strong basis in evidence to believe that the practice will result in disparate impact liability.