City Hiring Ruling Challenged

NASW is calling on the U.S. Supreme Court to overturn a lower court decision that, if left in place, would make it harder for employees to challenge their employer's discriminatory practices.

In the matter of Lewis et al. v. City of Chicago, a U.S. district court in 2005 ruled that the city was using a hiring exam for firefighters that illegally discriminated against minority applicants. However, an appeals court in 2008 reversed the ruling on a technicality, asserting that the applicants did not file their discrimination claims in time with the Equal Employment Opportunity Commission.

Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination based on race, color, religion, sex or national origin, requires claims of discrimination to be filed with the EEOC within 300 days after the alleged unlawful employment practice occurred.

The appeals court determined that the unlawful practice occurred the moment the city announced the test results; the plaintiffs filed their initial claims of discrimination well beyond 300 days of the city's announcement, the court concluded.

In an amicus brief submitted Nov. 30 to the Supreme Court, NASW and several other national organizations argued that the appeals court decision wholly ignores legal doctrine: that an illegal employment practice occurs each time an employer executes a practice that causes a disparate impact, and that the defining element of a disparate impact claim that triggers the 300-day countdown is the practice's effect -- in this case, the harm done to minority applicants each time the city hired on the basis of the test results.

The brief further attested that the appeals court decision "enshrines" the employer's ability to deny job opportunities "without any meaningful tether to successful job performance. It instead permits an employer to use a discriminatory non-job-related practice in perpetuity so long as no plaintiff files a charge within 300 days of its adoption."

Oral arguments before the nine-judge court are scheduled for Feb. 22. Read this and other NASW amicus briefs in the Amicus Brief Database.

In other news, the NASW Legal Defense Fund Board of Trustees voted at its November meeting to provide financial assistance to two members beset by legal proceedings.

A Nebraska Chapter member is challenging a decision by the Nebraska Department of Health and Human Services to recoup $22,000 in Medicaid payments for services he provided to residents of group homes.

The member received reimbursement for providing group treatment for more than 10 years and passed periodic audits by the Medicaid contractor, including an extensive audit in 2008. But following the most recent audit, he was hit with the $22,000 repayment request.

In his application for LDF assistance, the member expressed concern that health care providers are being unfairly and excessively scrutinized in what he described as states' misguided efforts to recoup funds due to budget shortfalls.

Furthermore, the NASW Nebraska Chapter says that many members no longer will accept Medicaid clients due in part to the state HHS's aggressive efforts to recoup payments after services have been rendered.

In its decision to assist the member in the amount of $4,000, the LDF Board said it supports the case because the difficulties Medicaid providers are experiencing with the administration of the payment and auditing process could limit the professional services available to the vulnerable Medicaid population.

A Massachusetts Chapter member will be reimbursed $2,500 to cover a portion of the legal fees incurred to defend against complaints arising from treatment the member provided to a minor child whose parents were involved in a divorce and custody dispute. The complaints against the member were dismissed after an investigation by the licensing board and an insurance company found them to be baseless.

The LDF was established in 1972 to advance the legal interests of the social work profession. Among other things, it provides grants of financial assistance to defray the legal expenses of NASW members engaged in litigation related to the NASW Code of Ethics, social work principles or standards of social work practice advocated by the association.

To be eligible for financial assistance, a social worker must be a member in good standing of NASW, have a case that falls within the selection criteria established by the LDF Board and submit an application for assistance.