The Supreme Court holds that a disparate impact class may challenge an employer's application of a practice, despite the fact that the class plaintiff failed to timely challenge the initial adoption of the practice.

In Lewis, the City of Chicago administered a written examination in 1995 to applicants seeking firefighter positions. Following the examination, the city announced that it would randomly select candidates that it deemed "well qualified," based upon the candidate scoring at least 89 out of 100 on the examination. Candidates scoring between 65 and 88 were deemed "qualified" but were not initially selected for positions. Over the next six years, the city repeated this process several times, randomly selecting "well qualified" candidates from the 1995 examination. Six African-American candidates who were deemed "qualified" and not hired filed charges with the Equal Employment Opportunity Commission following the city's second selection of candidates were hired. The Supreme Court noted that setting aside the first round of selection, both parties agreed that the discrimination charges were timely and, therefore, the reason question "is not whether a claim predicated on that conduct is timely, but whether the practice thus defined can be the basis for a disparate-impact claim at all." With this, the Supreme Court held that the class claims did, in fact, support a disparate impact cause of action. The Court reasoned that a plaintiff establishes a prima facie disparate-impact claim by showing that the employer "uses a particular employment practice that causes a disparate impact" and the city "used" the "practice" of only selecting those whom it deemed "well qualified" in each round of its employment selections.

Case Law Alert - 3rd Qtr 2010