It May Be Time to Review Your Hiring Practices

July 29, 2010

The U.S. Supreme Court, in the recent decision awarding up to $45 million in damages and pensions to minority fire department applicants, makes it easier for applicants and employees in some situations to file unlawful discrimination actions.

The Court's decision in Lewis v. City of Chicago means an unlawfully discriminatory event occurs each time an employer uses a previous discriminatory action (such as giving a discriminatory test) in a following, new employment practice. Each following new event begins a period of 300 days in which an applicant or employee can legally file a discrimination action.

What are the ramifications of this Lewis v. City of Chicago decision?

    * Each time an employer uses or applies an initial unlawful practice, the employer triggers a possible exposure to an illegal discrimination in employment action.

    * A sequence of actions (based on a first discriminatory action) will likely involve a number of individuals, not just one. The result could be an increase in disparate-impact claims involving groups of individuals and not just one person.

    * This means that employers who lose such actions likely will face much higher payouts to the winning parties, just as the city of Chicago is facing the possibility of paying out up to $45 million in damages and pension obligations to the 132 individuals discriminated against in the Lewis v. City of Chicago case.

    * If you or your business or organization are currently using pre-employment selection criteria (such as pre-employment testing), you need to reexamine what you are doing. You need to assure that each criteria and test you are using will not have an illegal disparate impact on individuals protected from discriminatory employment practices. 

    * You need to be sure that each selection criteria and test you use is job-related and tailored to the needs of the job. If a criteria or test does have a disparate impact, it will be legal only if there is a legitimate business necessity for its use.

    * Make sure that you can prove – to a jury and to a court – that the criteria and tests you use really do predict required and successful job performance for each job position.

Finally, consult with an attorney and/or an HR professional for guidance in the adoption, and continued use, of your hiring practices.

For more information, contact your Perelson Weiner partner.

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