If an employer adopts a discriminatory standard 15 years ago and no claim is brought against it, can an employee (or group of employees) file suit years later based upon a more recent application of the discriminatory standard?

The U.S. Supreme Court, in a unanimous opinion authorized by Justice Scalia, answered the questions in the affirmative.

Before beginning a Title VII case, the plaintiff must first file a timely EEOC charge of discrimination. In a disparate impact case, the court noted that a claim lies when the employer “uses” a particular employment practice that causes a disparate impact on one of the prohibited bases (race, creed, color, religion, sex, etc.).

In Lewis v. City of Chicago, the Supreme Court ruled that while there might have been a separate discrimination claim at the time the city adopted the challenged criteria, there could also be a separate claim when the city applied the criteria years later.

Although the court opened the door for later challenges to allegedly discriminatory employment practices, take note:  claimants must still file an EEOC (or DFEH) clam within the requisite time limits.  If they fail to do so, the claims cannot proceed.

A copy of the U.S. Supreme Court opinion in Lewis v. City of Chicago is attached for your convenience.

At Slote & Links, we regularly advise employers and employees on these issues and other concerns related to the workplace.  Feel free to give us a call if you have questions or issues in this area.