In a case coming out of Illinois, the U.S. Supreme Court has ruled that each time an employer uses the results of a test to select candidates for promotion creates a new opportunity for employees to challenge that test. That means if a test was invalid, its continued use may spur litigation long after the test was actually administered.
Recent case: In 1995, the city of Chicago gave a written examination to all candidates seeking firefighter positions. A year later, the city said it would consider only candidates who scored at least 89 points out of 100 for open positions. It then proceeded to pick those candidates randomly from that “well qualified” pool.
Anyone who scored below 65 was excluded, and those whose scores fell between 65 and 88 were kept on the list, but informed they would probably never be offered a job, even though they were rated as “qualified.”
The city then used the list for six years when it needed to fill firefighter positions. Eventually, several black candidates from the qualified list sued, claiming the test had a disparate impact on black applicants.
The 7th Circuit Court of Appeals concluded the applicants missed their 300-day deadline for filing an EEOC claim and that the date that counted was the date on which the city set up the list.
The Supreme Court reinstated the applicants’ lawsuit, concluding that the discriminatory event wasn’t when the test was administered. It was when the city used the results to make hiring decisions. By that measure, the applicants had filed their suit in time. (Lewis, et al., v. City of Chicago, No. 08-974, Supreme Court, 2010)
Final note: Make sure that any hiring or promotion test you use doesn’t have a disparate impact on any protected class of candidates.