Lewis v. City of Chicago

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Argued February 22, 2010. Decided May 24, 2010.

Authorship: Josh Friedman, Jonathan Eisenman, and Carl Cecere of Akin Gump

Docket: 08-974

Issue: When an employer adopts an employment practice that discriminates against African Americans in violation of Title VII’s disparate impact provision, must a plaintiff file an EEOC charge within 300 days after the announcement of the practice, or may a plaintiff file a charge within 300 days after the employer’s use of the discriminatory practice?

Contents

Briefs and documents

Decision

REVERSED AND REMANDED in a 9-0 decision with an opinion written by Justice Scalia.

Oral Argument

Transcript (February 22, 2010)

Merits Briefs

Amicus Briefs

Certiorari-Stage Documents

Opinion Analysis

Carl Cecere originally wrote the following for SCOTUSblog:

Had the petitioners in Lewis v. Chicago (No. 08-974) heeded the current wisdom of the commentariat and the legal academy, they might never have tried to take their case to the Court. After all, they were minority firefighters alleging claims of disparate impact discrimination based on the City of Chicago’s use of the results of a performance exam—almost the mirror image of Ricci v. DeStefano (No. 08-328), last term’s decision in favor of white firefighters who alleged discrimination in the City of New Haven’s failure to use the results of a similar test (and on which the Court had granted cert. by the time the Lewis petitioners filed their petition). Moreover, the case was dismissed by the Seventh Circuit as barred by the statute of limitations; to prevail, petitioners would have to establish that they are entitled to challenge the effects of a discriminatory policy even though the statute of limitations would prevent them from challenging the establishment of the discriminatory policy itself. Not exactly the ideal case to press before a Court thought to be conservative on Title VII. But petitioners ignored this conventional wisdom, and on May 24 they were rewarded: in a unanimous opinion by Justice Scalia, the Court not only held that petitioners’ disparate impact claims were not precluded by the statute of limitations, but also actually expanded the range of circumstances in which disparate impact lawsuits can be raised.

The suit in Lewis arises from the application process that the City of Chicago once used to choose its applicants for firefighter positions. In 1995, the first step in the application process for aspiring Chicago firefighters was a written examination. After the test was administered, the City decided to divide up the field of applicants into three groups. One group, comprising applicants who had scored at least eighty-nine out of one hundred points on the exam, were deemed “well qualified.” The City announced that it would choose its incoming firefighter classes by selecting candidates randomly from this group and then subjecting them to further screening. A second group, candidates who scored between sixty-five and eighty-eight points on the exam, were deemed “qualified,” but the City informed them that it was “unlikely” that they would ever be called to apply further. Those scoring below sixty-five were deemed “unqualified” and informed that they would not be chosen. The City ultimately went through ten rounds of hiring from this applicant pool. And although it began by drawing randomly from the pool of “well qualified” candidates, by the final round it had exhausted that pool and began to also fill open slots from the “qualified” category.

The petitioners in the case were minority candidates in the “qualified” category. They filed a lawsuit in which they alleged that the examination—which failed to produce any “well-qualified” minority candidates—had a discriminatory disparate impact, in violation of 42 U.S.C. § 2000e(k)(1)(A)(i). However, under Section 2000e-5(e)(1), they were required to bring this charge to the EEOC within three hundred days of a violation, and everyone—including petitioners—agreed that more than three hundred days had passed since the City had established the allegedly discriminatory policy—that policy being the administration of the test and the decisions regarding how the results would be used to select candidates.

On May 24, the Court held that the would-be firefighters could nonetheless bring suit as long as any cause of action for disparate impact accrued during the three-hundred-day statutory period. The Court rejected the idea that the petitioners could maintain a disparate impact claim only by challenging the establishment of the policy itself. Instead, the Court noted that, as defined by Section 2000e-2(k), a disparate impact violation occurs whenever “a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact. . . .” (emphasis added). Based on this language, the Court concluded that the “use” of a discriminatory employment practice was actionable, separate and apart from the point at which the employment practice itself had been adopted. Moreover, the Court determined that the City of Chicago had “used” the discriminatory test results each time it made hiring decisions on the basis of that policy.

To the Court, it was of no importance that the policy had been announced previously, thereby putting the petitioners on notice that they were not likely to be hired. Congress’s use of the term “use” allowed petitioners to sue at several different points. Although the City may have “used” the discriminatory employment policy when it sorted applicants according to test scores, it also “used” that policy when it actually selected applicants for hiring. Indeed, the Court emphasized, each separate round of hiring constituted a separate “use” of the discriminatory policy. The Court also rejected the City’s argument that Ledbetter v. Goodyear Tire and Rubber Co., No. 05-1074, and United Air Lines, Inc. v. Evans, No. 76-333, dictated a result in the City’s favor. The City had argued that these cases stood for the proposition that “present effects of prior actions cannot lead to Title VII liability.” Because the exclusion of the petitioners from selection followed inevitably from the earlier decision on the grade cut-off, the City argued, petitioners could not sue separately when hiring decisions were made on the basis of the prior decision. But the Court limited that principle to cases involving disparate treatment or other cases in which intent is an element of the claim. While the intent element for intentional discrimination cannot be met when a party simply ministerially applies a discriminatory policy, that does not mean that it is not “using” the policy when it does so.

The Court was similarly unmoved by the City’s concern that allowing petitioners to sue here would give civil rights plaintiffs free rein to sue years after allegedly discriminatory practices were adopted. The Court acknowledged that these concerns were substantial, but it emphasized that a contrary opinion would allow companies to engage in discriminatory practices with impunity simply because the discriminatory policy was well-established.

Many will ultimately dismiss Lewis as a minor Title VII case; a momentary blip in a stream of cases hostile to Title VII. But this reading of the case ultimately misses something important. The conservative members of the Court certainly could have interpreted the term “use” narrowly, as the Seventh Circuit had done below, if they really wanted to. And in distinguishing Ledbetter and Evans, the Court may have actually made it easier to prove a disparate impact claim than one involving discriminatory intent, at least in some circumstances. In this, Lewis at least suggests that the Roberts Court is serious about reading Congress’s intent neutrally. Although this may not exactly herald a new chapter of charity towards civil rights plaintiffs, it nevertheless means that Lewis deserves to be taken seriously as a challenge to assumptions about the Roberts Court’s commitment to Title VII.

Oral Argument Recap

Jonathan Eisenman originally wrote the following for SCOTUSblog:

On Monday, February 22nd, the Court heard oral argument in Lewis v. City of Chicago, a case turning on the question of when a test score is “used,” in violation of Title VII, in a way that has a disparate impact on African-American test-takers.

Arguing on behalf of the petitioners, African Americans who were deemed “qualified” to be firefighters after taking the City’s test, John A. Payton opened with a recitation of the relevant language of Title VII, which provides that an unlawful employment practice is established when a complainant proves that an employer has used a practice that causes a disparate impact based on race. Before Mr. Payton could explain why that use occurred eleven times, rather than once, Chief Justice Roberts asked whether Mr. Payton agreed that there would be no cause of action if the City administered the test, conceded that it would use the results for hiring, but said that it would not hire anyone for the time being. Mr. Payton responded that an announcement that the City would use the results in the future would itself be a violation. This caused Justice Scalia to ask whether a decision to use the results in the future had a present impact and could be an actual violation. Mr. Payton insisted that the announcement itself had such an impact.

Justice Sotomayor, referencing Title VII’s requirement that the challenged practice be used to “limit, segregate, or classify,” asked whether violations occurred both when the classification system was announced and subsequently each time it was used to limit someone’s opportunity to be hired. Mr. Payton agreed, staking out a broad array of culpable acts and prompting Justice Alito to ask whether a rule that would allow a disparate impact claim “six or seven years after the test was first administered, and quite a few years after it was first used in making hiring decision” could be “squared with Congress’s evident desire in Title VII to require that an EEOC charge be filed rather promptly after the employment action is taken.” Mr. Payton responded that Chicago could have limited its exposure by ceasing to use the test results instead of using them for eleven rounds of hiring. And when Justice Ginsburg wondered how long the City’s exposure would last, Mr. Payton responded that it would be 300 days from the City’s last use of the culpable practice and no longer.

But if relatively few people were hired, and the petitioners are a class of thousands of applicants, would everyone in the class have a cause of action if only a few jobs were available at each of the eleven hiring rounds? Justice Stevens and Chief Justice Roberts pressed this line of questioning. Mr. Payton claimed that if applicants filed an EEOC charge after the second round, no remedy could account for the first round of hiring; if after the seventh round, rounds 1-6 could not be accounted for in a remedy, etc.

Arguing on behalf of the United States, Deputy Solicitor General Neal Katyal made the government’s position clear: the City violated Title VII each time it made a hiring decision based on an improper classification. When Justice Alito raised concerns about the length of the City’s possible exposure to suit, Mr. Katyal acknowledged the possibility of long-term exposure but emphasized that limiting an employer’s exposure to 300 days after the initial adoption of a problematic employment practice effectively allows the employer to continue using the same flawed practice in perpetuity if it can survive the first 300 days without an EEOC complaint. Put another way, it would be “a get-out-of-jail-free card to use for all time.” Mr. Katyal then faced questions from Justice Kennedy, Chief Justice Roberts, and Justice Ginsburg about the allocation of damages, though none were particularly pointed. Justice Scalia returned to Justice Alito’s line of questioning, asking Mr. Katyal “of what use is a statute of limitations” that allows a complaint ten years after the initial use of an invalid test. The Chief Justice, however, offered a response to Justice Scalia with his own rhetorical question—he supposed that the benefit of such a rule is its limitation of damages, backward, to 300 days.

Benna Ruth Solomon, Deputy Corporation Counsel for the City of Chicago, faced sharp questions, beginning with a line of questioning from Justice Ginsburg about what would happen if there had been no initial classification, and the City instead hired applicants with the top scores each time it made a hiring decision. In other words, absent an official classification following the exam (“well-qualified,” “qualified,” etc.), what event would trigger the 300-day clock under the City’s argument? Would it then be the individual hiring rounds? Ms. Solomon conceded that in Justice Ginsburg’s hypothetical, each hiring decision would raise a new claim, prompting Justice Ginsburg to ask why the administrative act of making a classification immediately after the exam should have any significance at all. Justices Breyer and Sotomayor then asked why each round of hiring is not a statutory “use” of the problematic test results. Ms. Solomon reiterated the City’s position that it did not engage in any decision making after the initial classification of the petitioners, who all became ineligible to be firefighters at that point, rather than as a result of anything that the City did later.

Justice Stevens and Justice Ginsburg asked when the cause of action would accrue if the City adopted a rule that it would only hire high school graduates. If the cause of action accrues when the rule is adopted, what happens to applicants who had no reason to challenge the decision as an unlawful practice at the time it was made? For example, as the Chief Justice noted in pressing the hypothetical, what happens if a high school drop-out decides later in life that he wants to be a firefighter—would he have been required to challenge the decision to limit the job to high school graduates years before he knew that he even wanted to be a firefighter? Ms. Solomon did not complete a response to the hypothetical question, prompting Justice Sotomayor to return to it.

Ms. Solomon began her response to Justice Sotomayor by reiterating the City’s initial argument that “once [p]etitioners . . . were classified out of the eligible pool for priority hiring, they were out. They were not being considered any more at all.” Justice Alito then asked why the petitioners received a letter saying that because they were merely “qualified” applicants, it was “unlikely” (rather than impossible) that they would be considered for a position. Ms. Solomon responded by noting that although when no one knew how many people the City would eventually hire when the letter was mailed, it was unlikely that the petitioners would be hired. Thus, she argued, the petitioners could have sued at that time, at least in anticipation of being damaged by the delay in the City reaching the “qualified” applicants in the pool. Chief Justice Roberts asked whether that was bad policy, as people would be forced to sue the City over the mere possibility that they might eventually be hired, but were being delayed due to the disparate impact of the test. Justice Alito added that the City also indicated that it would be giving a new test in three years, which may also have provided the petitioners with an incentive not to sue immediately. Ms. Solomon noted that the petitioners still would face a delay of at least three years before they could be fairly tested, and thus still should have sued when the initial classifications were announced. Justice Alito pressed on by clarifying that the City admits that it treated the petitioners unlawfully, and he asked whether the City was prejudiced by the petitioners’ delay in filing their EEOC charge. In responding, Ms. Solomon claimed that it was impossible for the City to simply take apart the classifications.

Justice Ginsburg interrupted at that point, observing that the City was not required to take apart the classifications; it could have said only that it would not distinguish between “qualified” and “well-qualified” applicants. Ms. Solomon claimed that lowering the threshold at which applicants could qualify for positions would invite the well-qualified applicants to sue, prompting the Chief Justice to observe that the City still could have made the decision to stop acting unlawfully vis-à-vis the qualified applicants. Ms. Solomon began a response, but segued in midstream back to earlier questions from Justices Breyer and Sotomayor, leading the Chief Justice to demand that she finish her response to his point. Ms. Solomon answered that the City was still evaluating its options during the 300-day charging period, and so part of its calculus about whether to risk a suit from well-qualified applicants could reasonably have been driven by the conclusion that there was no reason to risk such a suit if the City was already safe from a suit by the qualified applicants.

Justice Scalia offered that the City’s argument “makes entire sense,” except that it looks as if the use, under Title VII, occurred every time the City relied on the flawed test results to hire firefighters. Ms. Solomon responded that Title VII could also be read as starting the 300-day charging period from the time that a court determines that an unlawful practice has been established, which would have allowed everyone in the qualified category to bring a suit “something like 11 years after the practice in this case.” Justice Breyer pressed Ms. Solomon about the elements of Title VII, leading her to respond that the statute, in its entirety, requires the “use of an employment practice with adverse impact,” and that here only the use of the test had an adverse impact: the practice of hiring had no such effect. After a brief colloquy with Justice Ginsburg, Ms. Solomon closed by observing that a policy prompting claims to be brought at the earliest opportunity is a compelling countervailing policy to one of righting employment wrongs. This closing statement prompted Mr. Payton, in concluding his brief rebuttal, to observe—following Mr. Katyal’s point—that such a policy would allow initially unchallenged, yet admittedly unlawful, employment practices to continue in perpetuity.

Pre-Argument Articles

Argument Preview

Josh Friedman, an associate at Akin Gump, originally wrote the following for SCOTUSblog.

Time will be of the essence today when the Supreme Court convenes to hear oral argument in No. 08-974, Lewis v. City of Chicago. At issue is whether the 300-day statute of limitations restricting disparate impact challenges brought pursuant to Title VII of the Civil Rights Act of 1964 is triggered every time an employer makes an employment decision based on results from an impermissible employment examination or instead begins to run only when the test results are first announced.

In July 1995, respondent City of Chicago administered a written test to more than 26,000 individuals applying to become firefighters. Applicants received one of three possible grades: “well-qualified,” “qualified,” or “failing.” These results had an impermissible disparate impact, on African-American applicants, who accounted for forty-five percent of all applicants but only 11.5% of the “well-qualified” applicants. Despite this impact, Chicago hired individuals from the “well-qualified” group in May 1996 and then again in October 1996. The City ultimately engaged in eleven rounds of hiring based on the results of the July 1995 test.

Petitioner Arthur L. Lewis filed a lawsuit on behalf of a class of six thousand African Americans who were deemed “qualified” by the 1995 exam but were not hired by the City. The City does not dispute that its test violated Title VII. Even when disparate impact is established, however, Title VII restricts the window in which specific employment practices can be challenged – here, complaints must be filed with the Equal Employment Opportunity Commission (“EEOC”) within 300 days of the employer’s “use” of the employment practice. Lewis did not challenge the examination until March 31, 1997 – more than 300 days after the exam, but less than 300 days after the City made hiring decisions based on the test results. The City thus argued that the applicants’ disparate impact challenge was untimely. The district court rejected this argument; in its view, the challenge was timely because Title VII was violated each time Chicago used the examination to make an employment decision. The Seventh Circuit reversed, holding instead that only the examination itself violated Title VII; any subsequent employment decisions, it explained, were simply the “automatic consequence” of the test itself. Lewis filed a petition for certiorari, which the Court granted on September 30, 2009.

In his brief on the merits, Lewis argues that the plain language of Title VII, the Court’s Title VII precedents, and the purpose of the statute all point to the conclusion that a Title VII claim accrues every time a hiring decision is based upon an impermissible employment examination. Specifically, he contends that 42 U.S.C. § 2000e-2(k) – which provides that “[a]n unlawful employment practice based on disparate impact” occurs if an employer “uses a particular employment practice that causes a disparate impact on the basis of race” – encompasses later hiring decisions based on an unlawful examination. Any other interpretation, he reasons, would not give full effect to the terms “employment practice,” “use,” and “causes a disparate impact.” Furthermore, in both Lorance v. AT&T Technologies (1989), and Ledbetter v. Goodyear Tire & Rubber Co. (2007), the court held that in a disparate impact case, “the charge-filing period ‘run[s] from the time that impact is felt.’” And finally, because a city will often rely on the results of an employment examination long after it is administered, Title VII should be construed to limit both the creation of a test-based list and also the use of that list in subsequent hiring decisions. A contrary result, Lewis warns, will lead to unnecessary charge-filing and premature litigation.

In its brief on the merits, the City counters that the only possible Title VII violation occurred when the city administered the employment examination. Thus, it maintains, Lewis’s challenge is untimely for four reasons. First, the applicants’ lone injury occurred when the City first decided to hire only applicants in the “well-qualified” group. At that point, applicants such as Lewis knew that there were other applicants ahead of them in the hiring order and accordingly “felt” the test’s impact. Second, as in disparate treatment cases in which the consequences of such treatment are not actionable, the consequences of an employment practice that produces a disparate impact should not affect Title VII’s statute of limitations. Thus, the appropriate starting point for the 300-day “charge-filing period” in this case must be the creation of the employment list itself. Third, 42 U.S.C. § 2000e-2(k) is irrelevant to this case, because it speaks only to the burden of proof in disparate-impact claims and not to the statute of limitations restricting such claims. Moreover, the statute is limited to “practices that cause disparate impact based on race,” which does not encompass hiring individuals from the race-neutral “well-qualified” category. Finally, the City argues, the rule advanced by Lewis is administratively infeasible and unduly burdensome.

The United States filed an amicus brief in support of Lewis et al. It reiterates Lewis’s plain text and precedent-based arguments, but it also asserts that requiring all complaints to be filed with 300 days of the initial test results “would merely encourage premature and unnecessary litigation that would burden employers, the EEOC, and courts alike.”

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