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- Lewis Sets the Standard for Timeliness of Claims Challenging Adverse Impact
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- Supreme Court 2009-2010 Terms Employment Decisions
Lewis Sets the Standard for Timeliness of Claims Challenging Adverse Impact
Kathleen J. Sanz
Law Clerk at Elfvin & Besser
2nd Year, CWRU School of Law
Elfvin & Besser extends its appreciation to Kathleen for her work on this article.
On May 24, 2010 a unanimous Supreme Court announced Lewis v. City of Chicago,1 holding that a class of Plaintiffs had timely challenged an unlawful employment practice related to the city's failure to hire them. Their EEOC charge challenged the employer’s use of a selection device which had a disparate (or adverse) impact under Title VII. There have been heated arguments about what constituted a timely charge challenging an employer’s use of a testing selection device. In essence, when do we start counting the days to file a charge: is it limited to 300 days from the date of the test, 300 days from the date of the announcement of the test results, 300 days from the date of the first use of the test result, or 300 days from any selections from the list? Lewis, a disparate impact case, is the most recent holding in a line of Supreme Court decisions clarifying when and under what circumstances a claimant’s 300 days to file a charge alleging discrimination runs. The Lewis decision is the first to address the timeliness issue based on a disparate or adverse impact. The prior decisions have focused on the timing of charges involving issues of disparate treatment.
The Supreme Court first adopted the disparate or adverse impact theory in 1971 in Griggs v. Duke Power Co.,2 where it held that the absence of discriminatory intent does not validate employment practices which operate as “built in headwinds” for minorities. One of the amendments to Title VII in the 1991 Civil Rights Act incorporated a specific provision incorporating proof of adverse impact claims as defined in Section 703(k).3Lewis addresses when an aggrieved party can file a timely charge of discrimination within 300 days of the unlawful employment practice.4 The Lewis Court was faced with the issue of when the 300 day clock begins to run: when did the unlawful employment practice take place? In disparate treatment decisions the Court has traditionally determined whether the harm to the employee results from an act that took place within 300 days of filing a charge.
Decisions which use the same line of logic include the earlier Seventh Circuit decision in United Air Lines, Inc. v. Evans,5 from 1977, in which a female flight attendant challenged an airline’s discriminatory policy of previously refusing to employ married women. Evans brought her claim years after her discharge for violating the 'no marriage' rule following her airline rehire. She challenged United's refusal to give her seniority including her prior service. The Circuit held the claim to be untimely based on the decision to discharge married women, a decision which had occurred more than 300 days prior to the filing of the charge. In Lorance v. AT&T Technologies Inc.6 , female employees filed a discrimination claim after their employer changed company policy: the women were laid off due to lower seniority several years later. AT&T had adjusted seniority for periods of absence due to pregnancy for many years. The Court found for the employer, stating that the current layoffs were the continuing effects of the change in policy which had taken place outside the charging period of 300 days.
In 2007 in Ledbetter v. Goodyear Tire Rubber Company, Inc.7,the Court rejected a female employee's pay discrimination claim as untimely. Ledbetter claimed that she had received lower starting pay than similarly situated male employees and that this lower pay progressively had resulted in a larger pay disparity because of her sex. Ledbetter argued that each paycheck received was a separate unlawful employment practice allowing her to file a charge within 180 days of each paycheck. The Court acknowledged that the unlawful act had been to sexually discriminate in setting her initial pay at a lower rate because of her sex, and that the subsequent disparities in pay were continuing effects of this decision and did not constitute new acts of gender discrimination within the 180 days prior to her charge.8
The Court addressed timeliness in the context of academia in Delaware State College v. Ricks9 in 1980. In Ricks an untenured professor claimed discrimination arising from the college's denial of his tenure. The college, upon denial of tenure, had given Ricks a one-year termination contract. Ricks filed his charge at the end of the one-year termination contract instead of within 300 days of the initial denial of tenure. The Court held that the unlawful employment practice was the tenure denial and the termination contract was merely an effect of this denial. The charge was filed 365 days after the unlawful act and was therefore untimely.
The Court revisited timeliness once again in National Railroad Passenger Corporation v. Morgan10 in 2002, where the employee's discrimination claim was based on a series of unlawful acts affecting the terms and conditions of his employment. The unlawful actions began more than 300 days before the charge was filed, but continued for a long time. The court viewed each instance of discrimination as a separate act upon which a claim could be filed. The court held that each unlawful employment act starts a new clock for filing charges based on the act, and that although charges could not be filed based on unlawful acts outside the charging period alone, a challenge based on the specific acts which occurred within the charging period is acceptable to bring the continuing practice to court.
These cases were the background for Lewis, which clarifies the timing for a charge based upon disparate or adverse impact. Each use of a selection device or test will be viewed as a distinct act upon which a Title VII claim can be based. In July 1995 the City of Chicago administered a written exam to applicants seeking firefighter positions. Chicago's letter of January 26, 1996 notified all exam takers of their scores and announced its intention to randomly select candidates from a sub-pool of applicants who scored at least 89 or higher on the test, classifying these applicants as “well qualified.” Applicants scoring below 65 would not be considered for a position. Applicants scoring from 65 to 88 fell into the “qualified” group and were notified that they would remain on the eligibility list but were unlikely to be chosen.
On May 16, 1996 the City of Chicago first selected applicants from the “well qualified” pool. After this selection, the City used the exam results starting October of 1996 nine additional times in hiring decisions over the next six years. On March 31, 1997, 327 days after the City's first use of the results, an African-American applicant who scored within the “qualified” range filed discrimination charges with the EEOC, claiming the test had a disparate impact on African-Americans.
The parties joined issue regarding the exact employment action upon which the charge was based. The City claimed the unlawful employment action was limited to the City’s initial announcement of the results or use of the exam on May 16, 1996. The Plaintiffs claimed a “continuing violation” and asserted that Title VII was violated each time the City used the exam results to select applicants. The continuing violation theory was abandoned on appeal and Plaintiff's relied upon the theory that each time the City drew from the pool of applicants; it created a new selection opportunity for everyone in the applicant pool and a new 300 days to file a charge.
The Supreme Court decided Lewis and reversed the Seventh Circuit in favor of the Plaintiffs, holding that Title VII challenges based on adverse or disparate impact arise with each use of the results rather than limiting all claims to the creation of a list or the first use. The Court's decision does not reach the issue of rank order based on exam results and the decision is also limited to disparate impact claims. It does not extend to disparate treatment claims, which require discriminatory intent on the part of the employer. Lewis will provide guidance to the lower courts and plaintiffs in assessing when to challenge unlawful employment practices based upon disparate or adverse impact theories under Title VII.
- 1560 U.S. ____, 2010 U.S. LEXIS 4165 (2010).
- 2401 U.S. 424, 91 S. Ct. 849 (1971).
- 342 U.S.C. § 2000e-2(k).
- 4In the absence of a state law prohibiting the discriminatory conduct the plaintiff has 180 days to file suit.
- 5431 U.S. 553, 97 S. Ct. 1885 (1977).
- 6490 U.S. 900, 109 S. Ct. 226 (1989).
- 7550 U.S. 618, 127 S. Ct. 2162 (2007).
- 8Public Law No. 111-2, 123 Stat. 5 (2009). The Lilly Ledbetter Fair Pay Act of 2009 was signed by President Obama on January 29, 2009 as a response to this decision. It voided the Supreme Court’s ruling in Ledbetter and clarified that discriminatory compensation decisions occur each time compensation is paid.
- 9449 U.S. 250, 101 S. Ct. 498 (1980)..
- 10536 U.S. 101, 122 S. Ct. 2061 (2002).