Wednesday, February 24, 2010

Bent: Lewis v. City of Chicago Highlights the Difficulty of Applying Title VII’s Charge Filing Rules in Systemic Cases

4United States Supreme Court 112904 I asked Jason Bent, a sometime guestblogger on these pages, to comment on the recent Supreme Court Title VII argument in Lewis v. City of Chicago.  Jason attended the oral arguments in person. PS

Lewis v. City of Chicago Highlights the Difficulty of Applying Title VII’s Charge Filing Rules in Systemic Cases

On Monday, the Supreme Court heard arguments in Lewis v. City of Chicago, and I was fortunate enough to have the opportunity to attend.  Below is a description of the case and my takeaway from the argument.

Some have described Lewis as the “flip side” of the Ricci case.  As to the underlying facts that could be a fair description.  But in Lewis the Court is considering only a question about the timeliness of an EEOC charge of disparate impact discrimination under Title VII.  The legal question for the Court is actually more like Ledbetter than Ricci.  The question presented in Lewis is when the charge filing period begins to run in a disparate impact case where the challenged test score cutoff (which the City now admits had an unlawful disparate impact on black candidates) is used to make several rounds of hiring over a number of years.

The City administered a written test in 1995 to over 26,000 applicants for firefighter jobs.  A score of 65 or above indicated that the candidate was fully qualified to be a firefighter, while those scoring 64 or below failed the exam.  Because of the high number of applicants scoring 65 or above, the City – against the advice of the test developer – further divided the passing grades into two groups:  those scoring 89 or above were labeled “Well Qualified,” and those scoring between 65 and 88 were labeled “Qualified.”  The City does not dispute on appeal that this additional cutoff at 89 had an unlawful disparate impact on black applicants.  In other words, 89 was an arbitrary cutoff that reduced the percentage of black applicants eligible for selection while having no important connection to whether the “Well Qualified” group was actually any more qualified to be firefighters.   

The City then sent letters to those in the “Qualified” group informing them of their classification.  The City argues that receipt of this letter was the event that triggered the 300 day charge filing period, so the wording is important:

Due to the large number of candidates who received higher scores and were rated as “Well Qualified,” and based on the operational needs of the Chicago Fire Department, it is not likely that you will be called for further processing.  However, because it is not possible at this time to predict how many applicants will be hired in the next few years, your name will be kept on the eligible list maintained by the Department of Personnel for as long as that list is used.

The City then made hiring decisions by drawing randomly from only the “Well Qualified” group for further evaluation, including physical abilities tests, drug tests, and background checks.  This process was repeated, using the same “Well Qualified” group, for ten rounds of hiring between 1996 and 2001.  Finally, in the eleventh round of hiring the City had exhausted the “Well Qualified” group and filled out the class by drawing randomly from the “Qualified” group.  The City continued to hire from the “Qualified” group through 2007.

The question is whether a black applicant in the “Qualified” group was required to file charges within 300 days of receiving the City’s letter, or within 300 days of any time the test score cutoff was “used” – i.e., within 300 days of any given round of hiring between 1996 and 2001 in which the “Qualified” pool was not included in the random draw and the candidate was not hired.   

There are some interesting statutory interpretation questions that several Justices focused on, and that could very well be the basis for the Court’s ruling, but I am going to skip ahead to the policy arguments.  Lewis highlights some problems with applying the 300 day charge filing rule in systemic discrimination cases.  The City’s position would require the “Qualified” candidates to file charges within 300 days of receiving the letter quoted above – before they even know exactly how they will be affected by the City’s hiring plan.  This could be a bad policy result, as Chief Justice Roberts suggested at one point in the argument.  The City responded that, at the very least, the “Qualified” candidates knew that their hiring would be delayed relative to the “Well Qualified” group and that they should have filed charges based on their injury from this delay.  This might be enough to convince a majority of the Court, but is it good policy?  Do we really want everyone who has good reason to believe they may still get hired, just not as quickly as others, to initiate EEOC proceedings? 

It also seems to ignore the realities of the situation.  Congress intended that the EEOC charge filing process could be navigated by laypersons, not just attorneys.  Would individual applicants, without consulting attorneys, think it necessary to quickly file EEOC charges based on receipt of the letter quoted above?  Or would they wait to be told they were not actually selected?  After all, the letter indicates that the candidate is “Qualified” and will be kept on the eligible list. 

In my view, the larger problem is that Title VII’s short filing deadline can make sense for individual “discrete acts” of discrimination, but is often just plain inappropriate for systemic discrimination cases.  Lewis demonstrates the difficulty of applying the short deadline in cases where an employment practice with a systemic disparate impact is announced and then continues to be used in hiring decisions for years.  A related problem occurs where a systemic disparate treatment violation occurs over time, and can only be identified by looking at several years worth of the employer’s hiring, promotion, or firing data.  I discuss that problem in more detail here.  [LINK: http://www.lawrecord.com/files/bent.pdf] 

Whichever way the Court rules in Lewis, the result will be imperfect and the underlying problem will remain.  Congress might elect to apply a band-aid for this particular situation, as it did for Ledbetter, but the better course would be a complete overhaul of the charge filing rules, possibly including a liberal discovery rule.  As Professor Sullivan points out in his Tulane article [LINK: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1418101], the charge filing rules have generated an “enormous number of technical questions.”  Lewis is only the latest example, and it will not be the last.

Jason Bent

https://lawprofessors.typepad.com/laborprof_blog/2010/02/bent-on-lewis-v-city-of-chicago-highlights-the-difficulty-of-applying-title-viis-charge-filing-rules.html

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