Supreme Court expands employees’ ability to sue
The U.S. Supreme Court recently handed employees a victory when it ruled that the time period in which an employee may file a claim of discrimination begins anew each time an employer uses an employment practice that has a discriminatory effect. In this case, the City of Chicago used a written test to screen firefighter applicants. Test takers were ranked as “well qualified,” “qualified” or “not qualified.” The City only considered the “well qualified” applicants for open positions, resulting in a disproportionate number of African American candidates being screened out. The City argued that any claim for discrimination based on the test must be filed within 300 days of the date the test was given. But the Supreme Court ruled that the 300-day time limit started over again each time the City pulled more candidates for consideration out of that “well qualified” pool of applicants (Lewis v. City of Chicago, U.S., May 2010).
This case makes it easier for a rejected applicant to make a timely claim of discrimination, which will lead to more claims against employers. If you use a test of any kind to screen applicants, it is critical to be sure that it does not unintentionally discriminate against a protected class of employees. If an applicant complains that your test disproportionately screens people out along lines of age, race, gender or disability, you will have to show the test is job-related and consistent with business necessity, and that a less discriminatory alternative isn’t available. The Equal Employment Opportunity Commission (EEOC) offers a Fact Sheet to help employers.