May 2010 Archives

May 24, 2010

Supreme Court Decides Disparate Impact Case

A while back, I wrote a post about a disparate impact case on the Supreme Court's docket, Lewis v. City of Chicago. The case dealt with time limits: specifically, which events start the 300-day statute of limitations clock for filing a charge of discrimination with the EEOC. (To bring a Title VII lawsuit, the plaintiff employee or applicant must first file a discrimination charge with the agency.) In this case, the municipal employer claimed that the applicants waited too long to file their discrimination charges. Today, the Court unanimously disagreed, finding that the applicants filed their charges in time and were entitled to bring their lawsuit.

The case involved a written test the city gave for applicants to be firefighters. The city gave applicants their test scores (which divided applicants into the categories of "well qualified," "qualified," or "not qualified") and were told that they were unlikely to be hired unless they fell into the "well qualified" category. Later, the city began its actual hiring, and did just what it had said it would do: It used the earlier announced cut-off scores to choose successful applicants from those in the well qualified category.

A group of African-American applicants challenged the practice as discriminatory based on disparate impact. The city countered that the applicants should have filed their charges at the EEOC within 300 days of learning what their test scores were and how the city intended to use them. The applicants contended that they filed their charges in a timely manner, within 300 days after the city applied that announced policy to actually make hiring decisions, and the Court agreed.

It's hard to see how the Court could have held otherwise, for two reasons: First, as Justice Scalia's opinion points out, requiring the plaintiffs to sue within 300 days of the announcement of a policy or forever hold their peace would insulate ongoing discrimination from challenge. Once the employer made it past the 300-day mark, it could apply its discriminatory policy with impunity forever.

Second, what if circumstances changed or the city decided not to go forward with the policy after all? For example, what if the city suddenly had the money to hire many more firefighters than it had previously planned to hire, and so was able to accept applicants whose scores were too low for the well qualified category? Or, what if the city had second thoughts about the policy and decided not to follow it by the time hiring began? An applicant who sued anyway based solely on the city's announcement of its policy -- which it didn't go on to apply -- would have a tough time prevailing in court.  


May 5, 2010

EEOC Charge Filed for Illegal Firing Under GINA

Last week, Pamela Fink filed a charge with the EEOC, alleging that she was fired from her job after telling her employer that she carried the BRCA2 gene (linked to some forms of breast cancer) and had undergone a voluntary double mastectomy after her two sisters had both been diagnosed with the disease. According to news reports, this is the first publicized case under GINA -- and one of the first EEOC charges to allege wrongful termination rather than improper disclosure of medical information.

In this case, Fink told her supervisors about the genetic test results and her surgery. She said that she felt comfortable doing so because she had received positive reviews, merit increases, and bonuses. Once she returned from surgery, she claims that her job duties were taken away, she was demoted, and was soon fired. The company has denied the allegations and said that its actions were warranted.

With so few facts on the table, it's hard to glean many lessons from this situation -- except perhaps that silence is golden. From an employer's perspective, it's always a good idea to limit the number of people who are privvy to information that cannot legally be considered when making employment decisions. If the decision maker doesn't know the protected information, whether it's that the employee has a disability, has complained of sexual harassment, or is pregnant, it's more difficult to prove discrimination or retaliation. And from an employee's perspective, limiting disclosure also limits the number of people who have an opportunity to act badly.

To learn more about GINA (and 19 other important workplace laws), see The Essential Guide to Federal Employment Laws (Nolo).