Issues
Does a plaintiff have to file an EEOC charge within 300 days after an employer announces its discriminatory hiring practice, or can a plaintiff file an EEOC charge within 300 days after each instance that the employer uses or applies the discriminatory hiring practice?
Petitioners, Arthur L. Lewis, Jr., et al. (“Lewis”), a group of African Americans who applied to become firefighters in Chicago sued the city under the Civil Rights Act of 1964, claiming Chicago’s use of an eligibility test had a disparate racial impact on African Americans, effectively resulting in employment discrimination. The plaintiffs won their discrimination lawsuit in the federal district court, but the Seventh Circuit reversed on the basis that the claim had not been filed within the 300-day filing period for employment discrimination claims. The Court held that the filing period began at the time that the applicants were informed of the results of the test. This case presents the Court with the opportunity to determine whether the subsequent use of the results of an eligibility test with disparate racial impact qualifies as a discretely new violation of the Civil Rights Act that would begin anew another 300-day filing period.
Questions as Framed for the Court by the Parties
Under Title VII, a plaintiff seeking to bring suit for employment discrimination must first file a charge of discrimination with the EEOC within 300 days after the unlawful employment practice occurred. Where 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?
Facts
In 1995, the City of Chicago (“Chicago”) adopted a new exam to screen applicants for entry-level firefighter positions. Chicago divided the scores into three categories—“not qualified,” “qualified,” and “well qualified.” On January 26, 1996, Chicago notified all applicants of their test scores and that applicants in the “qualified” category were unlikely to be hired because of the large numbers of applicants who had tested in the “well-qualified” category, but that “qualified” applicants would remain on an eligibility list for subsequent hiring rounds. Chicago subsequently hired ten more classes of firefighter applicants who were in the “well qualified” category from May 1996 to November 2002.
The Petitioners, Arthur L. Lewis, Jr., et al. (“Lewis”) are a class of about 6,000 African Americans who scored within range of being “qualified,” but were not hired by Chicago since the city decided to hire only from the pool of applicants in the “well qualified” range of scores. In order to initiate Title VII litigation, a plaintiff is required to file discrimination charges with the Equal Employment Opportunity Commission (“EEOC”) within 300 days after the alleged employment discrimination happened. In this case, the first discrimination charge was filed by plaintiff Crawford M. Smith on March 31, 1997, which was 430 days after Chicago announced its hiring practice, but 181 days after the date that Chicago first put its hiring practice into use, and prior to the time period in which the City hired nine more classes of firefighters in either full or partial reliance on the test and its scoring system.
The district court determined that the charges were filed with the EEOC within the 300-day period and thus, and the suit was not time-barred. Chicago’s sole defense on appeal was that the EEOC charge was untimely. The United States Court of Appeal for the Seventh Circuit ruled that the 300-day period started on the day Chicago informed Lewis about the hiring practices. The Seventh Circuit reasoned that injury occurring from the implementation of a discriminatory practice is not a discrete discriminatory act, but rather “the automatic consequence of an earlier one—the adoption of the standard.” Thus, the earliest EEOC charge filed was after the 300-day period, and the Lewis’ suit was time-barred. Lewis appealed the decision, and the Supreme Court granted certiorari on September 30, 2009.
Analysis
This case concerns Section 703(a) of Title VII of the Civil Rights Act of 1964 (“Title VII”) which makes it an unlawful employment practice for an employer to use race as the basis for deciding whether to hire an applicant. Under the act, an aggrieved party has 300 days after the discriminatory action by an employer to file a claim under Title VII with the Equal Employment Opportunity Commission (“EEOC”). The Petitioners, Arthur L. Lewis, Jr., et al. (“Lewis”), argue that each time the City of Chicago hired firefighters based on a test that had a disparate impact on minorities, a new discriminatory act occurred, thus beginning a fresh 300-day period to file claims. The Respondent, City of Chicago (“Chicago”), argues that the discriminatory act occurred when the results of the test were given to the applicants, and the City’s policies for hiring off that list were announced. If the Supreme Court agrees with Chicago’s interpretation of the filing period, the firefighters’ claim of discriminatory action will be dismissed, as Lewis did not file within 300 days from the time that the City first announced its plan to base its hiring practices the disputed test results.
Statutory Interpretation of Title VII
The parties agree that identifying the discriminatory employment practice “with care” is the key to resolving the case, as the 300-day filing period begins when an employer uses an employment practice that is a Title VII violation. Lewis argues that a discriminatory employment practice occurs any time Chicago hires applicants from the list using a cutoff score that placed applicants in only the “well qualified” category. Chicago argues that the discriminatory employment practice was the act of deciding to limit hiring to only those applicants who fell in the “well qualified” category, and then informing the applicants who had fallen within the “qualified” and “less than qualified” categories of this decision.
To support his reading, Lewis looks to the words of the statute, specifically the word “uses,” which Lewis defines as “active employment” of something. Lewis argues that, in Chicago’s own words, Chicago “used” the test results to hire new firefighters in a way that discriminated against African Americans on ten separate occasions. Lewis then notes that prior Supreme Court precedent confirms that a disparate impact violation of Title VII occurs when an employer selects applicants for hire in a racial pattern that differs significantly from the pool of applicants so that each time Chicago applied the current test on the test as an eligibility requirement it violated Title VII. [kaw1]
Chicago looks to Congressional intent to support its reading of the statute, arguing that Congress intended to create a specific enforcement scheme for Title VII violations that laypersons, rather than lawyers, are able to set into motion by filing a brief statement of the violation with the EEOC which then investigates the claim. Chicago argues that this scheme, of which a short, 300-day filing period is an integral part, is the result of legislative compromises that serve a variety of policy goals, such as giving employers time to gather evidence, preventing employers from having to defend against stale claims, and allowing the EEOC to resolve discrimination claims administratively before resorting to federal court. Lewis counters that this could not be Congress’s intent, as the enforcement scheme would be ineffective under Chicago’s reading of the statute because laypersons will not file complaints until they feel the effects of disparate impact discrimination—presumably when Chicago uses the test to hire other applicants. Chicago believes that the applicants felt the effects of the discrimination when they were informed of the results of the test and how those results would be used. Lewis also argues that Chicago’s reading of Title VII actually frustrates Congressional intent, because if the administration and scoring of a test is a discriminatory act, then this is so only because it leads to the use of the test in hiring. Lewis points out that Congress was concerned with applicants actually not being hired because of their race when it passed Title VII, not with their test scores.
Lewis also looks to the text of Title VII as a whole, because § 703(h) states that action taken by an employer on the results of an ability test is not a violation unless the test was “designed, intended, or used to discriminate” on the basis of race. Lewis argues this provision would be unnecessary if the employer’s act in using the results of a test could not be a violation of Title VII. Lewis also argues that Title VII’s broad and inclusive definition of an “unlawful employment practice” as “to limit, segregate, or classify . . . applicants . . . in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race” should encompass Chicago’s use of the test results.
Chicago responds to these statutory interpretation arguments by arguing that while a new violation of Title VII would begin a new filing period, Chicago claims that Lewis never proved that the uses of the test had a disparate impact. Chicago argues that the decision to hire certain applicants based on their eligibility did injure Lewis, but that there is no proof that subsequent action taken by Chicago in carrying out that decision caused a separate disparate impact injury.
The Supreme Court’s Title VII Jurisprudence
Chicago’s primary argument is that previous Supreme Court decisions set out settled rules to determine when a violation of Title VII occurs. Chicago argues that, under the settled rules, when there is a discrete act of discrimination, such as scoring the test and deciding to hire applicants that fall into a certain scoring range, the neutral and inevitable consequences of that discrete act are not themselves new violations unless there is a facially discriminatory policy underlying them. Chicago argues by analogy to the facts of several previous Supreme Court cases, including, for example, a situation where a professor was denied tenure because of a discriminatory act but then waited until he was fired over a year later to file a claim. In that case, the Supreme Court considered the firing to be the neutral and inevitable consequence that a professor in his position faced as the result of the discriminatory tenure decision, not a new act. Chicago argues that actually hiring new firefighters is simply the neutral and inevitable consequence of the discriminatory practices associated with scoring the test, deciding how the test was going to be used, and informing the applicants, so it should not be considered a new discrete act of discrimination begins a new 300-day filing period.
Lewis argues that even if the test itself was a discrete act of discrimination and a violation of Title VII, this does not preclude the uses of the results in hiring from also being violations. Lewis notes that the Supreme Court has previously held that employees may bring suits for new violations even if they are related to old violations so long as they are sufficient to constitute violations themselves. Lewis then attempts to distinguish the Supreme Court precedent in Ricks and other cases relied on by Chicago from the issue presented here by drawing a line between disparate impact claims and claims involving initial acts of intentional discrimination followed by neutral consequences. Lewis argues that the previous cases involve disparate treatment claims, where intent is a required element for a violation of Title VII, and the neutral consequences of the original disparate treatment would lack that element and would not be new violations of Title VII. Lewis argues that where the claim is instead involving a disparate impact, which does require intent, there is a new violation each time there is an action that results in disparate impact. As each use of the test had a disparate impact by depriving African Americans of employment opportunities, Lewis argues that each use was a new violation and should begin a new 300-day filing period.
Chicago considers disparate impact and disparate treatment to be merely different methods of proving the same claim—discrimination—as either theory can often be applied to the same set of facts. More importantly, Chicago concedes that any new violation of Title VII would begin a new 300-day filing period but argues that Lewis never demonstrated that there was a disparate impact resulting from any of the ten discrete uses of the test. Rather, Chicago claims, Lewis concentrated on the disparate impact of the test itself and only after the trial in the district court, came up with the theory that each use of the test in hiring was a new violation that would begin a new filing period.
Discussion
The Petitioners, Arthur L. Lewis, Jr. at al. (“Lewis”), argue that an alleged unlawful employment practice occurred on October 1, 1996, the date that the Respondent, the City of Chicago, used its hiring practice to fill a class of firefighters. Lewis argues that Chicago’s notification to applicants of its employment practice is an act of discrimination and that each time Chicago put this practice into use, it registered as a separate and fresh act of discrimination. According to Lewis, each time Chicago hires a new class of firefighters, the 300-day filing period starts anew. On the other hand, Chicago argues that the alleged Title VII violation occurred in January 1996, when the City first notified Lewis that it would most likely only hire applicants who scored as “well qualified” on the exam. Chicago argues that the alleged act of discrimination started when the City announced its hiring practice, and the subsequent hiring of applicants was simply a continuation of the alleged act. The Supreme Court’s ruling in this case will have a direct practical impact on the effective enforcement of Title VII by establishing the range of time within which claims can be filed.
Certainty v. Uncertainty
Lewis argues that an important practical result to treating the date when an employer uses a discriminatory hiring practice as the beginning of the EEOC filing period is that the rule is clear and offers predictability. The filing period would begin at the time the plaintiff was injured, so that the potential plaintiff would have a better concept of the timeliness of his or her action, and defendants could better assess potential liability.
The United States, filing as an amicus curiae for Lewis, points out that beginning the filing period on the date an employment practice is announced would require plaintiffs to file an EEOC charge even before knowing if the employer will actually use its purported discriminatory hiring policy. The United States also points out that the position advanced by Chicago would theoretically allow an employer to carry on their discriminatory practices indefinitely if no one filed an EEOC claim within the time required after an announcement of the policy.
Conversely, Chicago argues that using the date that a hiring policy is announced reduces liability to employers. Chicago argues that adopting the rule supported by the Petitioners would expose employers to an open-ended period of liability and obstruct employers’ ability to meet staffing needs. Furthermore, although Chicago admits that it is possible that some discrimination charges would be filed prematurely under its proposed method, it explains that premature charges would be beneficial since they notify the EEOC of potential problems and give the EEOC an opportunity to work with both the complainant and the employee to resolve a course of action, before having to resort to litigation. Building on Chicago’s argument, an amicus curiae for Chicago also points out that if the 300-day period starts anew each time new employees are hired, then employers will have less security, because they may face lawsuits throughout the period when a hiring policy is in use. The Pacific Legal Foundation believes that employers might seek to avoid this liability by refraining from implementing qualifying tests and, instead, implementing other alternative hiring practices that could not be challenged on a disparate-impact basis, such as racial balancing or setting racial quotas.
Administrative Burden
Another amicus curiae for Lewis, the International Association of Official Human Rights Agencies, contends that adopting Chicago’s position would impose additional burdens on the EEOC. Under such a framework, theEEOC would be required not only to determine when a hiring practice was implemented, but also to process claims of discrimination at a time when it might be difficult to determine whether the policy, in fact, had or will have a disparate impact. Beginning the 300-day filing period at the time a hiring policy is announced would also likely cause an increase in the number of discrimination charges. Rather than wait and allow “the hiring process to play itself out,” workers will be pressured to file claims of discrimination if they have even a suspicion that a hiring process might have a disparate impact so as to preserve their claims if effects are realized after the 300-day period. Such an increase in preemptive claims would place additional administrative pressures on the already backlogged EEOC.
However, Chicago believes that administrative burdens would actually result from the position argued by Lewis. Chicago points out that according to Lewis’ position, a charge could be filed whenever an alleged discriminating hiring policy is put into use; however, if the Supreme Court favored the Respondent’s argument, then only one charge would be filed—when the hiring policy is first announced. One of Chicago’s amicus curiae argues that the rule proposed by Chicago also serves to provide employers timely and fair notice that a discrimination charge has been filed and that the EEOC will soon begin an investigation. An early notice provides employer an opportunity to conduct an internal investigation to determine whether there are potential discriminatory practices and to voluntarily correct unlawful practices.
However, the City of New York and the International Municipal Lawyers Association, writing as amicus curiae for Chicago, contend that the rule argued by Lewis would have a direct adverse impact on public employers. They argue that subjecting each individual hiring decision made by public employers to its own 300-day filing period would greatly increase the public employer’s vulnerability to “protracted litigation.” Amici argue that this will hit public employers with particular force, since many public employers are required to administer merit exams to determine hiring eligibility under state and local laws.
Conclusion
This case presents the Court with the opportunity to further clarify the law surrounding Title VII employment discrimination claims. The Court will decide whether hiring applicants based on the results of an eligibility test with disparate racial impact is a new violation of Title VII, beginning a new 300-day filing period, or the neutral and inevitable consequence of a previous act which would not begin a new filing period. The Court's decision may significantly affect the ease with which employees may file discrimination claims and the scope of employers' liability in relation to hiring practices.
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Acknowledgments
Additional Resources
- Wex: Law about Civil Rights
- Wex: Law about Employment Discrimination
- Wex: Law about Statute of Limitations
- The Chicago Tribune: “Supreme Court: Chicago firefighters up”