Lewis v. City of Chi.

Decision Date24 May 2010
Docket NumberNo. 08–974.,08–974.
PartiesArthur L. LEWIS, Jr., et al., Petitioners, v. CITY OF CHICAGO, ILLINOIS.
CourtU.S. Supreme Court

John A. Payton

for the petitioners.

Neal K. Katyal, for the U.S., as amicus curiae, by special leave of the Court.

Benna Ruth Solomon for the respondent.

Clyde E. Murphy

, Chicago Lawyers' Committee for Civil Rights Under Law, Inc., Chicago, IL, John Payton, Counsel of Record, Debo P. Adegbile, Matthew Colangelo, Joy Milligan, Ryan C. Downer, NAACP Legal Defense & Educational Fund, Inc., New York, NY, Joshua Civin NAACP Legal Defense & Educational Fund, Inc., Washington, DC, Judson H. Miner, George F. Galland, Jr., Miner, Barnhill & Galland, P.C., Chicago, IL, Matthew J. Piers

, Joshua Karsh, Hughes, Socol, Piers, Resnick & Dym Ltd., Chicago, IL, Patrick O. Patterson, Jr., Law Office of Patrick O. Patterson, S.C., Fox Point, WI, Fay Clayton, Cynthia H. Hyndman, Robinson, Curley & Clayton, P.C., Chicago, IL, Bridget Arimond, Chicago, IL, for respondents.

Mara S. Georges

, Corporation Counsel of the City of Chicago, Benna Ruth Solomon, Counsel of Record, Myriam Zreczny Kasper, Chief Asst. Corp. Counsel, Nadine Jean Wichern, Asst. Corp. Counsel, Chicago, Illinois, for respondent.

Clyde E. Murphy

, Chicago Lawyers' Committee for Civil Rights Under Law, Inc., Chicago, IL, John Payton, Counsel of Record, Debo P. Adegbile, Matthew Colangelo, Joy Milligan, Ryan C. Downer, NAACP Legal Defense & Educational Fund, Inc., New York, NY, Joshua Civin, NAACP Legal Defense & Educational Fund, Inc., Washington, DC, Judson H. Miner, George F. Galland, Jr., Miner, Barnhill & Galland, P.C. Chicago, IL, Matthew J. Piers, Joshua Karsh, Hughes, Socol, Piers, Resnick & Dym Ltd., Chicago, IL, Patrick O. Patterson, Jr., Law Office Of Patrick O. Patterson, S.C., Fox Point, WI, Fay Clayton, Cynthia H. Hyndman, Robinson, Curley & Clayton, P.C., Chicago, IL, Bridget Arimond, Chicago, IL, for petitioner.Opinion

Justice SCALIA

delivered the opinion of the Court.

Title VII of the Civil Rights Act of 1964 prohibits employers from using employment practices that cause a disparate impact on the basis of race (among other bases). 42 U.S.C. § 2000e–2(k)(1)(A)(i)

. It also requires plaintiffs, before beginning a federal lawsuit, to file a timely charge of discrimination with the Equal Employment Opportunity Commission (EEOC). § 2000e–5(e)(1). We consider whether a plaintiff who does not file a timely charge challenging the adoption of a practice—here, an employer's decision to exclude employment applicants who did not achieve a certain score on an examination—may assert a disparate-impact claim in a timely charge challenging the employer's later application of that practice.

I

In July 1995, the City of Chicago administered a written examination to over 26,000 applicants seeking to serve in the Chicago Fire Department. After scoring the examinations, the City reported the results. It announced in a January 26, 1996, press release that it would begin drawing randomly from the top tier of scorers, i.e., those who scored 89 or above (out of 100), whom the City called “well qualified.” Those drawn from this group would proceed to the next phase—a physical-abilities test, background check, medical examination, and drug test—and if they cleared those hurdles would be hired as candidate firefighters. Those who scored below 65, on the other hand, learned by letters sent the same day that they had failed the test. Each was told he had not achieved a passing score, would no longer be considered for a firefighter position, and would not be contacted again about the examination.

The applicants in-between—those who scored between 65 and 88, whom the City called “qualified”1—were notified that they had passed the examination but that, based on the City's projected hiring needs and the number of “well-qualified” applicants, it was not likely they would be called for further processing. The individual notices added, however, that because it was not possible to predict how many applicants would be hired in the next few years, each “qualified” applicant's name would be kept on the eligibility list maintained by the Department of Personnel for as long as that list was used. Eleven days later, the City officially adopted an “Eligible List” reflecting the breakdown described above.

On May 16, 1996, the City selected its first class of applicants to advance to the next stage. It selected a second on October 1, 1996, and repeated the process nine more times over the next six years. As it had announced, in each round the City drew randomly from among those who scored in the “well-qualified” range on the 1995 test. In the last round it exhausted that pool, so it filled the remaining slots with “qualified” candidates instead.

On March 31, 1997, Crawford M. Smith, an African–American applicant who scored in the “qualified” range and had not been hired as a candidate firefighter, filed a charge of discrimination with the EEOC. Five others followed suit, and on July 28, 1998, the EEOC issued all six of them right-to-sue letters. Two months later, they filed this civil action against the City, alleging (as relevant here) that its practice of selecting for advancement only applicants who scored 89 or above caused a disparate impact on African–Americans in violation of Title VII. The District Court certified a class—petitioners here—consisting of the more than 6,000 African–Americans who scored in the “qualified” range on the 1995 examination but had not been hired.2

The City sought summary judgment on the ground that petitioners had failed to file EEOC charges within 300 days after their claims accrued. See § 2000e–5(e)(1)

. The District Court denied the motion, concluding that the City's “ongoing reliance” on the 1995 test results constituted a “continuing violation” of Title VII.App. to Pet. for Cert. 45a. The City stipulated that the 89–point cutoff had a “severe disparate impact against African Americans,” Final Pretrial Order, Record, Doc. 223, Schedule A, p. 2, but argued that its cutoff score was justified by business necessity. After an 8–day bench trial, the District Court ruled for petitioners, rejecting the City's business-necessity defense. It ordered the City to hire 132 randomly selected members of the class (reflecting the number of African–Americans the Court found would have been hired but for the City's practices) and awarded backpay to be divided among the remaining class members.

The Seventh Circuit reversed. 528 F.3d 488 (2008)

. It held that petitioners' suit was untimely because the earliest EEOC charge was filed more than 300 days after the only discriminatory act: sorting the scores into the “well-qualified,” “qualified,” and “not-qualified” categories. The hiring decisions down the line were immaterial, it reasoned, because [t]he hiring only of applicants classified ‘well qualified’ was the automatic consequence of the test scores rather than the product of a fresh act of discrimination.” Id., at 491. We granted certiorari. 557 U.S. ––––, 130 S.Ct. 47, 174 L.Ed.2d 631 (2009).

II
A

Before beginning a Title VII suit, a plaintiff must first file a timely EEOC charge. In this case, petitioners' charges were due within 300 days “after the alleged unlawful employment practice occurred.” § 2000e–5(e)(1)

.3 Determining

whether a plaintiff's charge is timely thus requires “identify[ing] precisely the ‘unlawful employment practice’ of which he complains.” Delaware State College v. Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980)

. Petitioners here challenge the City's practice of picking only those who had scored 89 or above on the 1995 examination when it later chose applicants to advance. Setting aside the first round of selection in May 1996, which all agree is beyond the cut-off, no one disputes that the conduct petitioners challenge occurred within the charging period.4 The real question, then, is not whether a claim predicated on that conduct is timely, but whether the practice thus defined can be the basis for a disparate-impact claim at all.

We conclude that it can. As originally enacted, Title VII did not expressly prohibit employment practices that cause a disparate impact. That enactment made it an “unlawful employment practice” for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin,” § 2000e–2(a)(1)

, or “to limit, segregate, or classify his employees or applicants for employment 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” any of the same reasons, § 2000e–2(a)(2). In Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), we interpreted the latter provision to “proscrib[e] not only overt discrimination but also practices that are fair in form, but discriminatory in operation.”

Two decades later, Congress codified the requirements of the “disparate impact” claims Griggs

had recognized. Pub.L. 102–166, § 105, 105 Stat. 1074, 42 U.S.C. § 2000e–2(k). That provision states:

(1)(A) An unlawful employment practice based on disparate impact is established under this subchapter only if—
(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity ... .”

Thus, a plaintiff establishes a prima facie disparate-impact claim by showing that the employer uses a particular employment practice that causes a disparate impact” on one of...

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