Lewis v. City of Chicago

(Slip Opinion) OCTOBER TERM, 2009 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
LEWIS ET AL. v. CITY OF CHICAGO, ILLINOIS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 08–974. Argued February 22, 2010—Decided May 24, 2010
In 1995, respondent the City of Chicago gave a written examination to
applicants seeking firefighter positions. In January 1996, the City
announced it would draw candidates randomly from a list of appli
cants who scored at least 89 out of 100 points on the examination,
whom it designated as “well qualified.” It informed those who scored
below 65 that they had failed and would not be considered further. It
informed applicants who scored between 65 and 88, whom it desig
nated as “qualified,” that it was unlikely they would be called for fur
ther processing but that the City would keep them on the eligibility
list for as long as that list was used. That May, the City selected its
first class of applicants to advance, and it repeated this process mul
tiple times over the next six years. Beginning in March 1997, several
African-American applicants who scored in the “qualified” range but
had not been hired filed discrimination charges with the Equal Em
ployment Opportunity Commission (EEOC) and received right-to-sue
letters. They then filed suit, alleging (as relevant here) that the
City’s practice of selecting only applicants who scored 89 or above
had a disparate impact on African-Americans in violation of Title VII
of the Civil Rights Act of 1964, see 42 U. S. C. §2000e–2(k)(1)(A)(i).
The District Court certified a class—petitioners here—of African-
Americans who scored in the “qualified” range but were not hired.
The court denied the City’s summary judgment motion, rejecting its
claim that petitioners had failed to file EEOC charges within 300
days “after the unlawful employment practice occurred,” §2000e–
5(e)(1), and finding instead that the City’s “ongoing reliance” on the
1995 test results constituted a continuing Title VII violation. The
litigation then proceeded, and petitioners prevailed on the merits.
The Seventh Circuit reversed the judgment in their favor, holding
2 LEWIS v. CHICAGO
Syllabus
that the 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 later hiring decisions, the Seventh Circuit held, were
an automatic consequence of the test scores, not new discriminatory
acts.
Held: A plaintiff who does not file a timely charge challenging the adop
tion of a practice may assert a disparate-impact claim in a timely
charge challenging the employer’s later application of that practice as
long as he alleges each of the elements of a disparate-impact claim.
Pp. 4–11.
(a) Determining whether petitioners’ charges were timely requires
“identify[ing] precisely the ‘unlawful employment practice’ of which”
they complain. Delaware State College v. Ricks, 449 U. S. 250, 257.
With the exception of the first selection round, all agree that the chal
lenged practice here—the City’s selection of firefighter hires on the
basis announced in 1996—occurred within the charging period.
Thus, the question 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. It can. A Title VII plaintiff establishes
a prima facie claim by showing that the employer “uses a particular
employment practice that causes a disparate impact” on one of the
prohibited bases. §2000e–2(k). The term “employment practice”
clearly encompasses the conduct at issue: exclusion of passing appli
cants who scored below 89 when selecting those who would advance.
The City “use[d]” that practice each time it filled a new class of fire
fighters, and petitioners allege that doing so caused a disparate im
pact. It is irrelevant that subsection (k) does not address “accrual” of
disparate-impact claims, since the issue here is not when the claims
accrued but whether the claims stated a violation. They did.
Whether petitioners proved a violation is not before the Court.
Pp. 4–7.
(b) The City argues that the only actionable discrimination oc
curred in 1996 when it used the test results to create the hiring list,
which it concedes was unlawful. It may be true that the City’s adop
tion in 1996 of the cutoff score gave rise to a freestanding disparate
impact claim. If so, because no timely charge was filed, the City is
now “entitled to treat that past act as lawful,” United Air Lines, Inc.
v. Evans, 431 U. S. 553, 558. But it does not follow that no new viola
tion occurred—and no new claims could arise—when the City later
implemented the 1996 decision. Evans and later cases the City cites
establish only that a Title VII plaintiff must show a “present viola
tion” within the limitations period. For disparate-treatment claims—
which require discriminatory intent—the plaintiff must demonstrate
Cite as: 560 U. S. ____ (2010) 3
Syllabus
deliberate discrimination within the limitations period. But no such
demonstration is needed for claims, such as this one, that do not re
quire discriminatory intent. Cf., e.g., Ledbetter v. Goodyear Tire &
Rubber Co., 550 U. S. 618, 640. Contrary to the Seventh Circuit’s
reasoning, even if both types of claims take aim at prohibited dis
crimination, it does not follow that their reach is coextensive. Pp. 7–
10.
(c) The City and its amici warn that this reading will result in a
host of practical problems for employers and employees alike. The
Court, however, must give effect to the law Congress enacted, not as
sess the consequences of each approach and adopt the one that pro
duces the least mischief. Pp. 10–11.
(d) It is left to the Seventh Circuit to determine whether the judg
ment must be modified to the extent that the District Court awarded
relief based on the first round of hiring, which occurred outside the
charging period even for the earliest EEOC charge. P. 11.
528 F. 3d 488, reversed and remanded.
SCALIA, J., delivered the opinion for a unanimous Court.
Cite as: 560 U. S. ____ (2010) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 08–974
_________________
ARTHUR L. LEWIS, JR., ET AL., PETITIONERS v. CITY
OF CHICAGO, ILLINOIS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[May 24, 2010]
JUSTICE SCALIA delivered the opinion of the Court.
Title VII of the Civil Rights Act of 1964 prohibits em
ployers 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 Opportu
nity Commission (EEOC). §2000e–5(e)(1). We consider
whether a plaintiff who does not file a timely charge chal
lenging 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 examina
tions, the City reported the results. It announced in a
January 26, 1996, press release that it would begin draw
ing randomly from the top tier of scorers, i.e., those who
2 LEWIS v. CHICAGO
Opinion of the Court
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 fire
fighters. 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 noti
fied 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
——————
1 Certain
paramedics who scored between 65 and 88 were deemed
“well qualified” pursuant to a collective-bargaining agreement, and
certain veterans in the “qualified” range had 5 points added to their
scores and therefore became “well qualified.”
Cite as: 560 U. S. ____ (2010) 3
Opinion of the Court
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 consti
tuted 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 ran
domly selected members of the class (reflecting the num
ber 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
——————
2 In addition to the class members, the African American Fire Fight
ers League of Chicago, Inc., also joined the suit as a plaintiff.
4 LEWIS v. CHICAGO
Opinion of the Court
held that petitioners’ suit was untimely because the earli
est 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 rea
soned, 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 discrimina
tion.” Id., at 491. We granted certiorari. 557 U. S. __
(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 (1980). Petitioners here chal
lenge 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,
——————
3 All agree that a 300-day deadline applies to petitioners’ charges
pursuant to 29 CFR §§1601.13(a)(4), (b)(1), 1601.80 (2009). Cf. EEOC
v. Commercial Office Products Co., 486 U. S. 107, 112, 114–122 (1988).
4 Because the District Court certified petitioners as a class, and be
cause a court may award class-wide relief even to unnamed class
members who have not filed EEOC charges, see Franks v. Bowman
Transp. Co., 424 U. S. 747, 771 (1976), petitioners assert and the City
does not dispute that the date of the earliest EEOC charge filed by a
named plaintiff—that filed by Smith on March 31, 1997—controls the
timeliness of the class’s claims. We assume without deciding that this
Cite as: 560 U. S. ____ (2010) 5
Opinion of the Court
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 employ
ment, 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 indi
vidual 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 (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 dis
parate impact is established under this subchapter
only if—
“(i) a complaining party demonstrates that a re
spondent uses a particular employment practice
that causes a disparate impact on the basis of race,
color, religion, sex, or national origin and the re
spondent fails to demonstrate that the challenged
practice is job related for the position in question
——————
is correct.
6 LEWIS v. CHICAGO
Opinion of the Court
and consistent with business necessity . . . .”
Thus, a plaintiff establishes a prima facie disparate
impact claim by showing that the employer “uses a par
ticular employment practice that causes a disparate im
pact” on one of the prohibited bases. Ibid. (emphasis
added). See Ricci v. DeStefano, 557 U. S. ___, ___ (2009)
(slip op., at 18).
Petitioners’ claim satisfies that requirement. Title VII
does not define “employment practice,” but we think it
clear that the term encompasses the conduct of which
petitioners complain: the exclusion of passing applicants
who scored below 89 (until the supply of scores 89 or above
was exhausted) when selecting those who would advance.
The City “use[d]” that practice in each round of selection.
Although the City had adopted the eligibility list (embody
ing the score cutoffs) earlier and announced its intention
to draw from that list, it made use of the practice of ex
cluding those who scored 88 or below each time it filled a
new class of firefighters. Petitioners alleged that this
exclusion caused a disparate impact. Whether they ade
quately proved that is not before us. What matters is that
their allegations, based on the City’s actual implementa
tion of its policy, stated a cognizable claim.
The City argues that subsection (k) is inapposite be
cause it does not address “accrual” of disparate-impact
claims. Section 2000e–5(e)(1), it says, specifies when the
time to file a charge starts running. That is true but
irrelevant. Aside from the first round of selection in May
1996 (which all agree is beyond the 300-day charging
period), the acts petitioners challenge—the City’s use of its
cutoff score in selecting candidates—occurred within the
charging period. Accordingly, no one disputes that if
petitioners could bring new claims based on those acts,
their claims were timely. The issue, in other words, is not
when petitioners’ claims accrued, but whether they could
Cite as: 560 U. S. ____ (2010) 7
Opinion of the Court
accrue at all.
The City responds that subsection (k) does not answer
that question either; that it speaks, as its title indicates,
only to the plaintiff’s “[b]urden of proof in disparate im
pact cases,” not to the elements of disparate-impact
claims, which the City says are be found in §2000e–2(a)(2).
That is incorrect. Subsection (k) does indeed address the
burden of proof—not just who bears it, however, but also
what it consists of. It does set forth the essential ingredi
ents of a disparate-impact claim: It says that a claim “is
established” if an employer “uses” an “employment prac
tice” that “causes a disparate impact” on one of the enu
merated bases. §2000e–2(k)(1)(A)(i). That it also sets
forth a business-necessity defense employers may raise,
§2000e–2(k)(1)(A)(i), and explains how plaintiffs may
prevail despite that defense, §2000e–2(k)(1)(A)(ii), is ir
relevant. Unless and until the defendant pleads and
proves a business-necessity defense, the plaintiff wins
simply by showing the stated elements.
B
Notwithstanding the text of §2000e–2(k)(1)(A)(i) and
petitioners’ description of the practice they claim was
unlawful, the City argues that the unlawful employment
practice here was something else entirely. The only ac
tionable discrimination, it argues, occurred in 1996 when
it “used the examination results to create the hiring eligi
bility list, limited hiring to the ‘well qualified’ classifica
tion, and notified petitioners.” Brief for Respondent 23.
That initial decision, it concedes, was unlawful. But be
cause no timely charge challenged the decision, that can
not now be the basis for liability. And because, the City
claims, the exclusion of petitioners when selecting classes
of firefighters followed inevitably from the earlier decision
to adopt the cutoff score, no new violations could have
occurred. The Seventh Circuit adopted the same analysis.
8 LEWIS v. CHICAGO
Opinion of the Court
See 528 F. 3d, at 490–491.
The City’s premise is sound, but its conclusion does not
follow. It may be true that the City’s January 1996 deci
sion to adopt the cutoff score (and to create a list of the
applicants above it) gave rise to a freestanding disparate
impact claim. Cf. Connecticut v. Teal, 457 U. S. 440, 445–
451 (1982). If that is so, the City is correct that since no
timely charge was filed attacking it, the City is now “enti
tled to treat that past act as lawful.” United Air Lines,
Inc. v. Evans, 431 U. S. 553, 558 (1977). But it does not
follow that no new violation occurred—and no new claims
could arise—when the City implemented that decision
down the road. If petitioners could prove that the City
“use[d]” the “practice” that “causes a disparate impact,”
they could prevail.
The City, like the Seventh Circuit, see 528 F. 3d, at490–491, insists that Evans and a line of cases following it
require a different result. See also Ledbetter v. Goodyear
Tire & Rubber Co., 550 U. S. 618 (2007); Lorance v. AT&T
Technologies, Inc., 490 U. S. 900 (1989); Ricks, 449 U. S.
250. Those cases, we are told, stand for the proposition
that present effects of prior actions cannot lead to Title VII
liability.
We disagree. As relevant here, those cases establish
only that a Title VII plaintiff must show a “present viola
tion” within the limitations period. Evans, supra, at 558(emphasis deleted). What that requires depends on the
claim asserted. For disparate-treatment claims—and
others for which discriminatory intent is required—that
means the plaintiff must demonstrate deliberate discrimi
nation within the limitations period. See Ledbetter, supra,at 624–629; Lorance, supra, at 904–905; Ricks, supra, at
256–258; Evans, supra, at 557–560; see also Chardon v.
Fernandez, 454 U. S. 6, 8 (1981) (per curiam). But for
claims that do not require discriminatory intent, no such
demonstration is needed. Cf. Ledbetter, supra, at 640;
Cite as: 560 U. S. ____ (2010) 9
Opinion of the Court
Lorance, supra, at 904, 908–909. Our opinions, it is true,
described the harms of which the unsuccessful plaintiffs in
those cases complained as “present effect[s]” of past dis
crimination. Ledbetter, supra, at 628; see also Lorance,
supra, at 907; Chardon, supra, at 8; Ricks, supra, at 258;
Evans, supra, at 558. But the reason they could not be the
present effects of present discrimination was that the
charged discrimination required proof of discriminatory
intent, which had not even been alleged. That reasoning
has no application when, as here, the charge is disparate
impact, which does not require discriminatory intent.
The Seventh Circuit resisted this conclusion, reasoning
that the difference between disparate-treatment and
disparate-impact claims is only superficial. Both take aim
at the same evil—discrimination on a prohibited basis—
but simply seek to establish it by different means. 528
F. 3d, at 491–492. Disparate-impact liability, the Court of
Appeals explained, “ ‘is primarily intended to lighten the
plaintiff’s heavy burden of proving intentional discrimina
tion after employers learned to cover their tracks.’ ” Id., at
492 (quoting Finnegan v. Trans World Airlines, Inc., 967
F. 2d 1161, 1164 (CA7 1992)). But even if the two theories
were directed at the same evil, it would not follow that
their reach is therefore coextensive. If the effect of apply
ing Title VII’s text is that some claims that would be
doomed under one theory will survive under the other,
that is the product of the law Congress has written. It is
not for us to rewrite the statute so that it covers only what
we think is necessary to achieve what we think Congress
really intended. See Oncale v. Sundowner Offshore Ser
vices, Inc., 523 U. S. 75, 79–80 (1998).
The City also argues that, even if petitioners could have
proved a present disparate-impact violation, they never
did so under the proper test. The parties litigated the
merits—and the City stipulated that the cutoff score
caused disparate impact—after the District Court adopted
10 LEWIS v. CHICAGO
Opinion of the Court
petitioners’ “continuing violation” theory. App. to Pet. for
Cert. 45a. That theory, which petitioners have since
abandoned, treated the adoption and application of the
cutoff score as a single, ongoing wrong. As a result, the
City says, “petitioners never proved, or even attempted to
prove, that use of the [eligibility] list had disparate im
pact,” Brief for Respondent 32 (emphasis added), since the
theory they advanced did not require them to do so. If the
Court of Appeals determines that the argument has been
preserved it may be available on remand. But it has no
bearing here. The only question presented to us is
whether the claim petitioners brought is cognizable.
Because we conclude that it is, our inquiry is at an end.
C
The City and its amici warn that our reading will result
in a host of practical problems for employers and employ
ees alike. Employers may face new disparate-impact suits
for practices they have used regularly for years. Evidence
essential to their business-necessity defenses might be
unavailable (or in the case of witnesses’ memories, unreli
able) by the time the later suits are brought. And affected
employees and prospective employees may not even know
they have claims if they are unaware the employer is still
applying the disputed practice.
Truth to tell, however, both readings of the statute
produce puzzling results. Under the City’s reading, if an
employer adopts an unlawful practice and no timely
charge is brought, it can continue using the practice in
definitely, with impunity, despite ongoing disparate im
pact. Equitable tolling or estoppel may allow some af
fected employees or applicants to sue, but many others
will be left out in the cold. Moreover, the City’s reading
may induce plaintiffs aware of the danger of delay to file
charges upon the announcement of a hiring practice,
before they have any basis for believing it will produce a
Cite as: 560 U. S. ____ (2010) 11
Opinion of the Court
disparate impact.
In all events, it is not our task to assess the conse
quences of each approach and adopt the one that produces
the least mischief. Our charge is to give effect to the law
Congress enacted. By enacting §2000e–2(k)(1)(A)(i), Con
gress allowed claims to be brought against an employer
who uses a practice that causes disparate impact, what
ever the employer’s motives and whether or not he has
employed the same practice in the past. If that effect was
unintended, it is a problem for Congress, not one that
federal courts can fix.
III
The City asserts that one aspect of the District Court’s
judgment still must be changed. The first round of hiring
firefighters occurred outside the charging period even for
the earliest EEOC charge. Yet the District Court, apply
ing the continuing-violation theory, awarded relief based
on those acts. Petitioners do not disagree, and they do not
oppose the City’s request for a remand to resolve this
issue. We therefore leave it to the Seventh Circuit to
determine, to the extent that point was properly pre
served, whether the judgment must be modified in light of
our decision.
* * *
The judgment of the Court of Appeals is reversed, and
the case is remanded for further proceedings consistent
with this opinion.
It is so ordered.