Employees can sue over older policies

On Monday, the Supreme Court ruled that employees who failed to timely sue over the creation of a discriminatory policy may still be able to litigate the effects of that policy. The unanimous decision in Lewis v. City of Chicago (PDF, 139 KB), overturned a Seventh Circuit ruling.

In 1995, the City of Chicago set up a testing procedure for firefighter applicants that was later found to disparately impact black candidates. The plaintiffs in the case did not file their EEOC claims within 300 days of the testing procedure's creation. Instead, they filed within 300 days of when the procedure caused the rejections of their candidacies. The trial court allowed the lawsuit to proceed, but the Seventh Circuit reversed, holding that the lawsuit was untimely. With Justice Scalia writing the decision, the Supreme Court reversed.

In doing so, the Court concluded that the later effects of past actions can lead to liability under Title VII. This is because discriminatory-impact cases do not require proof of discriminatory intent. In an impact case, a plaintiff does not need to show that deliberate discrimination occurred within the past 300 days. The City argued that this would open the door for employers to "face new disparate-impact suits for practices they have used regularly for years." The Court was unmoved by this, ruling that the way Congress had amended Title VII necessitated this outcome.

Employers need to make sure that their policies and procedures are neither discriminatory nor have a disparate impact. It isn't enough to rely on the notion that "we've been doing it this way for years." When a policy affects a potential plaintiff is when the clock starts running.

What do you think? Will this change how some employers will operate? Share your thoughts in the comments.

Comments

[Jim aka Evil Skippy at Work]

I'm convinced that most employers want to do the right thing and this includes avoiding discriminatory practices whether or not the Supreme Court makes them do so. I am also convinced -- from having worked as an employment lawyer for a couple of decades before becoming an independent training/investigations consultant -- that there are quite a few employers who operate solely based on what they can do without losing a lawsuit. Those employers would not hesitate to maintain a discriminatory policy if there was no way that it would support a lawsuit (in other words, there was no way that the policy would end up costing them money).

In my personal opinion -- smart employers will get rid of discriminatory policies simply because they prevent the work environment from being the best place that it can be. Eliminating discrimination is an important part of any program for maintaining great morale and encouraging employee retention.