Lewis V. City of Chicago: Supreme Court Adopts Broad View of Eeoc Filing Period in Title VII Disparate Impact Cases

Article excerpt

I. Introduction

Title VII of the 1964 Civil Rights Act prohibits a covered employer from using an employment practice that causes a disparate impact on either employees or job applicants based on race, color, religion, national origin, or sex.1 Disparate impact discrimination involves facially neutral practices that affect some employees or applicants more adversely than others.2 If a practice is shown to have a disparate impact, an employer has a defense only if it can prove that the practice is job related for the position in question and consistent with business necessity3 Before litigating a claim that one has been subjected to an unlawful practice, one must exhaust his administrative remedies by filing a charge with the Equal Employment Opportunity Commission (EEOC) within 180 days after the act occurred, unless he first files with a state or local agency with authority to grant relief; then the limitations period is 300 days.4

In Lewis v. Chicago,5 decided in May of 2010, the U.S. Supreme Court addressed the issue of when the filing period begins if a complainant was subject to the disputed practice when it was adopted and it was applied to him on later occasions. Is he forever barred from challenging the practice if he did not file a charge within 180/300 days of the adoption date? Or is each use of the practice a new violation, so that he may file within 180/300 days of any such use? In Lewis, the Court took the latter position.

This paper discusses the Lewis case. After summarizing the facts, it reviews the parties' arguments, some Supreme Court precedents dealing with when a Title VII cause of action accrues, and the trial and appellate court holdings. It then explains how the Lewis Court reached its conclusion. Finally, it speculates on the implications of Lewis for employers, the immediate effect of which was to allow the litigation to proceed although the plaintiffs did not challenge the practice at issue after its adoption. But the decision will have a broader impact, for it is now clear that a practice may be attacked no matter when it was adopted, what its subject may be, or how many times it may have been applied to the complainant, or to anyone else. Thus, the prospect of open-ended employer liability that was raised in the Court briefs is genuine.

II. Background

A. Facts

In July, 1995, the City of Chicago gave a written examination to 26,046 people who had applied to be firefighters.6 On January 26, 1996, the city announced the results and issued a press release stating that it would begin using a lottery to fill openings from among the applicants who scored 89 or above (out of 100), whom the city rated as well qualified.7 The chosen candidates would proceed to the next phase of the hiring process, which involved a physical abilities test, background check, medical exam, and drug test, and would be hired if they performed well. Applicants who scored below 65 were notified that they were not qualified and were ineligible for a position.8

The Lewis lawsuit involved some members of the applicant group who scored between 65 and 88 and were rated as qualified. On January 26, 1996, the city sent letters notifying this group that they were not likely to be called for further processing, given the projected hiring needs and the number of well qualified applicants; their names, however, would be placed on an "Eligible List" for potential hiring. On May 16, 1996, the city randomly selected a class of applicants from among the well qualified scorers to advance to the next stage of the hiring process. It did so again on October 1, 1996, and nine more times in six years. In the final lottery, the city included qualified applicants because it had exhausted the well qualified pool.9

On March 31, 1997, an African- American who had scored in the 65-88 range filed a discrimination charge with the EEOC. He asserted that the exam was not a valid measurement of aptitude for firefighting and that the cutoff score of 89 was arbitrary and caused a disparate impact on African-American applicants, because it disproportionately classified them as qualified rather than well qualified. …