The Supreme Court recently ruled on a case involving employees at a fire department in Connecticut. To be considered for a promotion, the employees had to take a written and oral test. Candidates with the best scores were chosen.

A group of African-American firefighters complained that the test was biased, so the department threw out the results and started from scratch.

However, the white employees who would’ve been promoted based on the test scores sued. The Supreme Court agreed, ruling the department threw out the results of a perfectly good test.

Now, an African-American employee has filed his own suit. He’s claiming the test really was biased, and that he was unfairly denied a promotion when the policy on the test was reinstated.

Got that? We’ll keep you posted on how the suit proceeds.

One thing these cases show: Employment tests can be complicated. Companies should track results to look for signs of a disparate impact.

The Lilly Ledbetter Fair Pay Act gave employees more time to sue when they believe they’re victims of pay discrimination. The Supreme Court had previously ruled pay bias suits had to be filed within 180 days of when the discriminatory pay was set.

But the law gives employees a new 180-day window to sue every time they receive a paycheck in which they claim they are discriminated against.

The law was signed on January 29, 2009, but was made retroactive to May 28, 2007 (the day before the Supreme Court decision).

The EEOC recently sent notices to employees who had filed claims, asking if their case may have been affected by the passing of the law. Individuals who are affected by Ledbetter and did not already file a lawsuit will get a new “right to sue” letter from the EEOC.

That means those employees will get an additional 90-day period to file a lawsuit after they receive the letter.

A recent employment law ruling by the Supreme Court has gotten a lot of attention — but what impact will it have on HR’s day-to-day job?

A summary of the case:

The fire department in New Haven, Connecticut, used a standard test to choose which firefighters to promote to lieutenant and captain. In one round of testing, 19 white employees and one Hispanic employee passed. No black firefighters passed the test.

According to the employer’s policy, the 20 employees who passed should have been promoted. But, viewing the test as biased against the black employees — and fearing a lawsuit from them — management scrapped the results and based the promotions on other factors.

In a classic case of “you’re damned if you, you’re damned if you don’t,” the department was hit with a lawsuit — from the 20 employees who passed the test and weren’t promoted. They claimed they mere most qualified for the jobs — according to the department’s policy — but weren’t promoted because of their race.

Two lower courts threw the case out before the Supreme Court reversed.

What does it mean to HR?

The case has gotten a lot of attention, mostly because the decision overturns one made by High Court nominee Sonia Sotomayor. But what does it mean for HR pros?

The Court’s ruling stressed two points:

1. Employers do need to be careful about using selection procedures that have a disparate impact against a protected class, but
2. It’s not just a numbers game — if a test is job-related and consistent with business necessity, there’s no reason to suddenly change a selection procedure based on how many people of a certain race, gender, religion, etc., pass.

So basically if the test is legal, employers should stay consistent, rather than using the results in some instances and not in others.

Of course, few employers base hiring and promotion decisions solely on one thing, so deciding whether or not to scrap a test’s results likely wouldn’t have as big an impact as it did for the New Haven fire department.

But the case does contain a general lesson managers should be reminded of: Fear of being sued by members of one protected class is not a defense for discriminating against another.

Cite: Ricci v. DeStefano

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To recap the case of Ricci v. DeStefano:

Eighteen white employees and one Hispanic passed a firefighter promotion test. No black employees passed the test. The whites later sued the city after officials nixed the test results — and in fact dropped the test altogether — when the officials feared they’d be sued by black test-takers claiming that the test discriminated against and had a disparate impact on blacks.

The white employees took the case to the U.S. Supreme Court and won. The Supremes, in a 5-4 vote, said the city had to go by the test results. (Of no small significance — publicity-wise — was the fact that the  High Court overruled the judgment of Supreme Court nominee Sandra Sotomayor.)

Countless employment-law attorneys are now dissecting what the ruling means to you and your particular organization. Our guess is that, for most HR managers, the impact amounts to a big, fat zero.

First of all, the test in question was a promotions test, not a hiring test. Second, it was administered by a unit of government. Third, no one really has been able to nail the overall impact of the ruling.

Most employment tests these days are what are called “assessments,” meaning they test particular skills needed for the job in question. In fact, the City of New Haven officials  have mentioned they they’re moving to such tests, which are supposed to measure relevant factors instead of general knowledge or intelligence. So the ruling on the firefighters’ case has a further “who cares?” factor — unless you happen to be one of the eighteen who got denied a promotion. (And if you are, we suggest you look elsewhere for relevant post mortems of the ruling.)

Now, maybe you use Wonderlic or personality testing as a tool for hiring, but it’s doubtful that you rest your entire hiring decision on the results. If you do, we humbly suggest you consider changing your ways.

Be assured that the Supreme Court ruling has nothing to do with Wonderlic. In fact, we doubt it has much to do with anything of interest to you.

Unless, of course, you happen to be an employment-law attorney who’s looking to drum up a little more business.

President Barack Obama signed the Lilly Ledbetter Fair Pay Act into law. Here’s what it means to HR.

The law is retroactive to May 28, 2007, the date of the Ledbetter decision, which means that it will apply to all claims of pay discrimination pending on or after that date.

Summary of the law
The Fair Pay Act, S. 181, alters statute of limitations for pay discrimination claims. It also overrules the U. S. Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber Company, Inc.  Congress believed the High Court, in Ledbetter, unduly restricted the time period for bringing pay discrimination claims. The new law will will extend the shelf life of claims employees make against their employers.

Under the new law, an unlawful employment practice occurs when:

• the discriminatory pay decision is made
• an individual becomes subject to the discriminatory pay decision, or
• “an individual” (see below) is affected by the discriminatory compensation decision or other practice” — meaning that the deadline for filing a claim starts anew each time an employee receives wages, benefits, or other compensation tainted by the discriminatory pay decision, and may go back as far as two years from the date a charge was filed with the Equal Employment Opportunity Commission.

Broad application of ‘individual’ and ‘payment’
The language of the law also could be interpreted expansively to permit pay discrimination charges to be filed by individuals other than employees, so long as those individuals claim they have been affected by the discriminatory decision. The House rejected proposed amendments that would have clarified that the law applies only to employees.
Additionally, the new law is not limited to discriminatory wage or salary payments; it also applies to payments made under benefit plans, such as pension plans. That means, for instance, retired employees who receive pension payments may bring claims years after their pension plan went into effect.

What to do
You may want to consider

• the length of time you retain compensation and benefits records, and
• a review of your compensation and benefits practices to ensure there are no glitches that could have the appearance of discrimination.

The case involves white firefighters in New Haven, CT, who say they passed an exam for a job promotion only to have the test results thrown out because no African-American candidate received a high enough score to also be considered for promotion.

The test reportedly was specially designed to eliminate bias and do away with advantages for white applicants. Still, when no blacks and only two Hispanic applicants qualified for promotion — compared with 17 whites and one Hispanic –  the city decided to scrap the entire test.

The 18 who passed the test then sued, charging they were denied consideration for promotion just because they weren’t black.

A federal district judge threw the case out, but the High Court agreed to take it on, probably some time in April.

The court’s decision of course could have far-reaching effects on diversity programs in the public and private sector.

#1
Case: AT&T Corp. v. Hulteen

Issue: Pregnancy discrimination

Summary: The Pregnancy Discrimination Act of 1978 mandates that employees receive time-in-service credit — for purposes of retirement and other benefits — for all pregnancy-connected absences. The employer maintains that any pregnancy-related absences prior to ‘78, when the law was passed, cannot be added to time-in-service credit. The employee says pre-’78 pregancy absences must be credited.

#2
Case: Crawford v. Metropolitan Government of Nashville

Issue: Retaliation

Summary: ”Employee A” was called upon to provide information in an internal investigation involving a charge of sexual harassment against “Employee B,” a member of upper management. Eventually, Employee A was fired supposedly for poor job performance. Employee A sued the employer, charging the firing was in retaliation for cooperating with the investigation of Employee B. The employer argued that Title VII protections against retaliation apply only to formal investigations by the Equal Employment Opportunity Commission and not to an employer’s internal investigation.

#3
Case: 14 Penn Plaza LLC v. Pyett

Issue: Arbitration clauses

Summary: As part of a collective-bargaining agreement’s arbitration clause, an employee was obligated to waive his right to sue under the Age Discrimination in Employment Act. The employee argues that such clauses cannot be enforced because federal law guarantees the right to sue for age discrimination, and that no arbitration agreement can void that right.

After a series of U.S. Supreme Court rulings that tightened the definitions of “disabled” in the workplace, the U.S. Senate fired back with a law that expanded the definitions — and expanded the potential for employee lawsuits. 

The proposal is called the ADA Amendments Act. It was passed by the U.S. House earlier this year, by a vote of 402-17, and all indications are that President Bush will sign it into law, effective Jan. 1, especially since the bill sailed through the Senate with a voice vote and no dissent.

Here are the main changes to existing law and court rulings:

• The Supreme Court had ruled that so-called “mitigating measures” used by a disabled employee — such as medications or prosthetics — would take the employee out of the official category of “disabled.” In other words, the employer would not have to make disability accommodations for that employee. The new law changes all that. Employers will have to make accommodations and treat as disabled any applicant or employee who qualifies as such, without regard to mitigating measures.
• The original Americans with Disabilites Act and the Supreme Court defined limitations on a narrow list of “major life activities” that could qualify someone as “disabled” for the purposes of employment.  The range of major life activities listed in the act take in: performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.

The text of the bill goes so far as to cite the court decisions the new law is designed to overrule.

Specifically, the new legislation will overturn three 1999 High Court decisions: Sutton v. United Air Lines, Murphy v. UPS and Albertson’s, Inc., v. Kirkingburg.

Those are the cases where the court ruled that the determination of whether an individual has a “substantial impairment” must be made while taking into account the use of any medications, eyeglasses, hearing aids or other corrective measures.

The new law also addresses the 2002 case of Toyota v. Williams, in which the Court defined the term “substantially limits” to mean “considerable” or “to a large degree,” precluding impairments that interfere in only a minor way with performing tasks from coverage under the ADA.

The House version of the bill defined “substantially limits” to mean “materially restricts,” lowering the burden for proving the existence of a disability. The Senate version doesn’t contain the “materially restricts” language, but it too would overturn Williams. The definition of a “limitation” is the area that most legal experts see as ripe for lawsuits, especially if companies play hardball with employees who complain about what they perceive as a disability.

What now?
Several legal experts say employers can improve their chances of escaping lawsuits by taking a reasonable approach.

For instance, in an interview with Lawyers Weekly, Christy Hubbard, a partner in the Phoenix office of Lewis and Roca, said employers who have followed the ADA won’t have to overhaul their policies, but simply retune them and “retrain their managers to think more broadly in terms of what a disability may be.”

Employers also need to take action to avoid workplace tensions that can develop when some workers are given accommodations while others aren’t. “It is human nature to distrust things we have not ourselves experienced, and so a person who has never had severe back trouble, such as sciatica, may believe the person is ‘faking it’ or is just lazy,” Hubbard said. “To prevent harassment and retaliation … companies need to identify these types of issues early on. It is not in anyone’s best interest to let the lack of a $50 chair or some overzealous bravado cause a million-dollar lawsuit.”

The case
Actually, there were two cases, but the main one – CBOCS West v. Humphries – involved a black assistant manager at a Cracker Barrel restaurant in Illinois. He had complained about racist remarks and unfair treatment, and eventually was fired by a supervisor alleging poor performance. 

The employee sued, charging he was fired for complaining, not for performance reasons. And he insisted that retaliation for complaining about discrimination is part of discrimination itself and should be treated that way in the courts – as a violation of federal law. 

The employer argued retaliation isn’t mentioned specifically in laws barring discrimination, so an employee can’t tie the two together. 

The ruling
In a 7-2 opinion, the court agreed with the employee. In the wording of the majority opinion, retaliation is “embedded” in discrimination, making the two offenses the same, and subject to federal-court rulings. 

The effect
Few employers set out to intentionally retaliate against employers who file complaints, so what’s the big deal? 

The deal is that you can find yourself defending against a federal-level lawsuit for the appearance of retaliation after a discrimination claim. And that means even greater risk for employers whose managers don’t document properly. 

Imagine, for instance, a difficult employee who files a frivolous discrimination complaint and then performs poorly. If you try to discipline that employee for the performance, you’re going to hear a scream of  “retaliation” if the performance isn’t documented. 

A lot of employees and employment lawyers have figured out the tactic already: The EEOC reports that the number of retaliation complaints has doubled in the last 15 years.

Click here for more details about the case.

It all started with a Supreme Court case – Ledbetter v. Goodyear Tire and Rubber – in which a 20-year female employee sued her company after learning that men who held a job similar to hers were being paid more. Using the term of her employment as a basis, she demanded that the company fork over the pay differential that piled up over years, plus damages.

The company cited the statute-of-limitations language in the Equal Pay Act to defend itself: Employees have 180 days to file suit after being shortchanged in pay, so the time limit clearly had been broken.

The employee’s argument: I didn’t know there was a violation of the act until years later, so I couldn’t file before the 180 days expired.

The High Court found in favor of Goodyear, the employer.

Congress enters

Enter the U.S. Congress and a proposed bill — the Ledbetter Fair Pay Act – to change the language in the statute of limitations and allow cases like the one against Goodyear to proceed in the courts. President Bush vowed to veto the bill if it passed in the U.S. Senate.

The latest news: Congressional Republicans managed to pull together 42 votes opposing the legislation, meaning the bill supported by Democrats wont have the required 60 votes needed to override a presidential veto. Now, Democrats have vowed to make the bill an election issue in an attempt to win more seats in Congress, as well as the presidency.

We’ll keep you posted on the outcome of the battle and how it affects the bill.

Click here to see the full text of the Act.