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The Court challenges expectations in review of firefighter testing

Below, Akin Gump’s Carl Cecere recaps Monday’s ruling in Lewis v. City of Chicago.  [Although Howe & Russell filed an amicus brief in support of the petitioners, neither Carl nor Akin Gump was involved in the case.]  Josh Friedman of Akin Gump previewed the case here, and Jonathan Eisenman, also of Akin Gump, recapped the oral argument here.  Check the Lewis v. Chicago (08-974) SCOTUSwiki page for additional information.

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 yesterday 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 Monday, 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.