Last year, the U.S. Supreme Court's Ricci decision allowed white firefighters to claim reverse discrimination when testing results used to determine eligibility for promotions were disregarded by the employer. Last week, the Court addressed another testing dispute, this one involving issues over the timeliness of Title VII claims of disparate impact based on another firefighter promotion test.

In Lewis v. City of Chicago, the plaintiffs were a class of African-American firefighters who sought promotion in 1996. Chicago used a written test to qualify applicants for promotions. The applicants were classified based on scores, and over the years, the qualified applicants were offered promotions as positions became available. Several years later, the plaintiffs filed suit, alleging that the test had a disparate impact on unsuccessful African-American applicants. The City contended that the claims were untimely, because the plaintiffs did not file EEOC Charges within 300 days of the test and the subsequent qualification classifications.

The Supreme Court unanimously reversed the appellate court's dismissal of the claim. In its opinion, the Court drew a distinction between the adoption of an illegal practice, and the later application of that practice. The unlawful practice complained of here was not only the test, but the later use of the old test results to make actual promotion selections. Unlike disparate treatment claims, disparate impact cases require no demonstration of actual intent to discriminate within the limitations period. The actual selections, and not the test itself served as the unlawful practice from which the limitations period ran.

On a broader note, Lewis and Ricci demonstrate the legal risks employers face from use of aptitude and other employment or promotion tests. Unless such tests have been carefully validated for use in the employment context, they are leading to more and more claims of discrimination by persons disadvantaged as a result of their scores.