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Test scores and disparate impact under Title VII

Below, Jonathan Eisenman, an associate at Akin Gump, recaps Monday’s oral argument in Lewis v. City of Chicago. Additional information on the case is available on the Lewis v. City of Chicago (08-974) SCOTUSwiki page.   [Note: Although Howe & Russell represents one of the amici for the petitioners, neither Jonathan nor Akin Gump was involved in the case.]

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.  [You can read Josh Friedman’s pre-argument discussion of the case here.]

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.