The Equal Employment Opportunity Commission recently announced that it updated its enforcement guidance for national origin discrimination.  This updated guidance replaces a manual that was issued in 2002.

In total, the EEOC issued three documents:

• Updated Enforcement Guidance
• Question-and-Answer Publication
• Small Business Fact Sheet

According to the EEOC, the updated guidance set’s forth “the agency’s interpretation of the law and explains how federal anti-discrimination laws and regulations apply to specific workplace situations….The guidance also addresses developments in the courts since 2002, as well as topics such as job segregation, human trafficking and intersectional discrimination.”

In a decision issued on May 24, 2010, the United States Supreme Court ruled that the statute of limitations for a claim based on disparate impact discrimination begins to run on the date that an unlawful practice is applied, in addition to day it was adopted.

Specifically, in Lewis v. City of Chicago, the City of Chicago gave a written examination to applicants seeking a firefighter position.  The City graded the examinations out of 100 points, and announced that it would randomly draw candidates who scored between 89-100 points on the examination.  Applicants who scored below 89 points were generally not considered for employment.

Several African-American applicants sued on the basis that the practice of selecting only applicants who scored 89 points or higher had a disparate impact on African-American applicants, and that the test was not a valid method of determining firefighting aptitude.   The City responded that the disparate impact claim should be dismissed because the plaintiffs did not file their claim within 300 days of the date the applicants were scored and separated based on their scores. The plaintiff’s argued that the 300-day statute of limitations should be counted from the date other applicants were hired over the plaintiffs.

The Supreme Court ruled that a plaintiff who did not file a timely charge challenging the adoption of an unlawful practice may assert a disparate impact claim in a timely charge challenging the employer’s later application of that practice.  The Court also ruled that the statute of limitations began anew each time the City “filled a new class of firefighters.”

This is a very different result than we got from the Court’s earlier decision in a case entitled Ledbetter v. Goodyear Tire, where the Court reached the opposite conclusion on a similar type of issue (which later resulted in the Lilly Ledbetter Fair Pay Act.)