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When is a test “used” for purposes of Title VII’s statute of limitations?

Below, Josh Friedman, an associate at Akin Gump, previews Lewis v. City of Chicago, which will be argued this morning at 11 a.m.  Josh’s preview is also available on the Lewis v. City of Chicago (08-974) SCOTUSwiki page, where additional updates for the case will appear.  [Note: Although Howe & Russell represents one of the amici for the petitioners, neither Josh nor Akin Gump was involved in the case.]

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.”