- Supreme Court Clarifies Charge Filing Requirements for Disparate Impact Claims under Title VII
- September 28, 2010
- Law Firm: Elarbee Thompson Sapp Wilson LLP - Atlanta Office
On May 24, 2010, the Supreme Court held in Lewis v. City of Chicago, No. 08-974, that fire fighters alleging disparate-impact discrimination could assert a claim under Title VII of the Civil Rights Act of 1964 even though they had failed to file a timely charge of discrimination with the U.S. Equal Employment Opportunity Commission after the City's adoption of the challenged practice. Rather, the Lewis Court held that the question of whether the plaintiffs could pursue their action turned on the subsequent application of that practice. In so holding, the Court highlighted important differences in when claims of disparate impact -- as opposed to claims of disparate treatment -- must be brought under Title VII.
Disparate-treatment cases involve claims that an employer intentionally treats some people less favorably than others because of their race or other protected characteristics. Disparate-impact cases, on the other hand, involve claims that an employer's facially-neutral practices nevertheless fall more harshly on one protected group than another. Regardless of which kind of case a Title VII plaintiff intends to pursue, before filing a lawsuit, a Title VII plaintiff generally is required to first file a charge of discrimination with the EEOC within 180 days -- or 300 days in so-called deferral states -- after the alleged unlawful employment practice occurred.
For disparate-treatment claims (and other claims for which discriminatory intent is a required element) the plaintiff must demonstrate that deliberate discrimination -- and not just the continuing effects of that discrimination -- occurred within the 180 (or 300) day filing period. In Lewis, however, the Court held that no such demonstration is required for disparate-impact claims under Title VII.
In Lewis, the City of Chicago administered a written examination to applicants seeking positions with the City's Fire Department. After scoring the examination, the City effectively identified three bands of applicants: (1) those who scored 89 or above (out of 100), who were deemed "well qualified"; (2) those who scored below 89 but above 64, who were deemed "qualified"; and (3) those who scored 64 or below, who were deemed to have failed the examination. The City then announced that, for hiring purposes, it would begin drawing randomly from the top tier of scorers. The City informed the "qualified" applicants that it was unlikely that they would be called for further processing, but that each "qualified" applicant's name would be kept on an eligibility list maintained by the City for as long as that list was used.
Eleven times over the next six years the City randomly selected "well qualified" applicants from the list. In the last round, however, the City exhausted that pool of applicants, and so it began selecting persons for the remaining positions from the "qualified" pool. An African-American applicant who had scored in the "qualified" range but was not selected for further processing then filed an EEOC charge alleging that the City's practice of selecting for hire only those applicants who had scored in the "well qualified" range caused a disparate impact on African-Americans in violation of Title VII. The federal district court eventually certified a claim consisting of more than 6,000 African-Americans who had scored in the "qualified" range but who had not been hired, and ultimately ordered the City to hire 132 randomly-selected members of the class and awarded back pay to be divided among the remaining class members.
The City of Chicago asserted that the African-American applicants' claims were untimely because the earliest EEOC charge was filed more than 300 days after the City's classification of applicants based on the test results. The Seventh Circuit Court of Appeals agreed with the City on appeal, but the U.S. Supreme Court reversed.
The Supreme Court held that the timeliness of the applicants' disparate-impact claims was to be determined based on the actual implementation — and not exclusively on the adoption — of the challenged practice. Applying the statutory language of Title VII's disparate-impact provisions, the Court held that a disparate-impact claim "is established" when an employer "uses" an "employment practice" that causes a "disparate impact" on one of the statutorily-prohibited bases. The Court held that although the City's original decision to adopt the cutoff score (and create a list of the applicants based on it) could have given rise to a freestanding disparate-impact claim, it did not follow that no new claims could arise thereafter when the City implemented that decision in the future. In Lewis, the Court held that the plaintiffs' claims were timely because they were brought within 300 days of the City's subsequent "use" of the challenged hiring practice.
The City (and other employers supporting the City) argued that evidence essential to their business-necessity defenses might be lost or otherwise unavailable by the time later suits are brought. The Court acknowledged these concerns, but found that to permit an employer to continue using a practice indefinitely, and without impunity, despite its unlawful disparate impact, would be a puzzling result. Therefore, employers will need to re-evaluate their record-retention practices with regard to examinations used in hiring, promotion, and other employment decisions implicating the disparate-impact provisions of Title VII in much the same way as the statutory changes enacted in the wake of the Court’s Ledbetter decision required employers to re-evaluate their record-retention practices with regard to pay issues.