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USSC to Determine if Ledbetter Applies Beyond Pay Discrimination

On September 30, 2009, the U.S. Supreme Court decided to hear Lewis v. City of Chicago (7th Cir. 2008), a case that possesses shades of both the recent Ledbetter v. Goodyear Tire & Rubber case and the Ricci v. DeStefano cases.  It is similar to Ledbetter primarily because the primary issue deals with the applicability of the statute of limitations in cases of discrimination.  The similarity with Ricci is more contextual in that the case involves firefighters seeking positions and unhappy with the selection process.

In Lewis, the Seventh Circuit held that a group of African American firefighter applicants could not proceed with their discrimination claims against the City of Chicago because the discrimination charge they filed with the Equal Employment Opportunity Commission (EEOC) within 300 days and was therefore untimely.

The Lewis case gives the Supreme Court an opportunity to answer two important questions about the Ledbetter Fair Pay Act of 2009 (“the Act”). First, whether the courts will extend coverage beyond cases of pay discrimination. And second, whether the Act applies to disparate impact cases (that is, cases involving claims that an employment practice or policy that appears neutral on its face actually affects a protected group more harshly than an unprotected group).

In Lewis, about 26,000 entry-level firefighters took a written aptitude test to determine their eligibility for employment with the City of Chicago Fire Department. The plaintiffs’ test scores placed them in the “qualified” category. However, only applicants whose test scores placed them in the “well qualified” category were given the jobs. The City began hiring applicants from the “well qualified” group several months after the test scores were disclosed to the applicants. The plaintiffs sued the City, claiming the aptitude test had an adverse impact on African American applicants. The plaintiffs claimed their charge was timely because it was filed within 300 days of the date the City hired the first applicant in the “well qualified” group.

Advancing a position similar to that of the plaintiff in Ledbetter, the plaintiffs in Lewis argued that the charge filing period began to run not when the test results were communicated but when the city began using the test results to hire applicants. The Seventh Circuit rejected this argument, holding that the discrimination was complete when the tests were scored and the discrimination was discovered when the applicants learned the test results. Instead, the Seventh Circuit held that the plaintiffs’ lawsuit was untimely because they filed their EEOC charge more than 300 days after they learned of their test results.

The Seventh Circuit’s opinion follows very closely the Ledbetter analysis, which was subsequently reversed through the passage of the Act. Now that the Act has overruled Ledbetter, it is not clear how the Supreme Court will evaluate the Seventh Circuit’s decision in Lewis. Under the Act, at least for purposes of discrimination in compensation based on a theory of disparate treatment (that is, intentional discrimination), discrimination occurs (1) when the discriminatory practice is adopted, (2) when an employee becomes subject to the discriminatory practice, or (3) when the discriminatory practice affects the employee. Given the expansive language and intent of the Act, the Court may find that it applies to the plaintiffs’ claims in Lewis.

Undoubtedly, the impending Lewis decision will have a significant effect on employers and be another major decision looming on the horizon.  The Seventh Circuit is not the first to address whether the Act expands beyond the scope of pay discrimination. I’ll keep you updated!

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