Monday, February 22, 2010

Oral Argument Today in Lewis v. City of Chicago Title VII Case

4United States Supreme Court 112904 Here is the oral argument transcript from today.

Today, the United States Supreme Court is scheduled to hear oral argument in Lewis v. City of Chicago (opinion by Judge Posner below from the 7th Circuit).

Ross Runkel's Law Memo provides this summary of the case:

The City administered a written test to firefighter job applicants in 1995, and notified applicants of the results at the end of January 1996. Plaintiffs filed an EEOC charge on March 21, 1997 claiming that the test had a disparate impact on black applicants and was not a valid test of firefighting aptitude. The charge was filed more than 400 days after the plaintiffs were notified, but within 300 days of the City's beginning to hire applicants. The trial court ruled that each hiring was a fresh violation of Title VII, so the plaintiffs' suit was timely.

The 7th Circuit reversed, finding that "discrimination was complete when the tests were scored" and "was discovered when the applicants learned the results." Therefore, the EEOC charge was not filed on time. The 7th Circuit rejected plaintiffs' "continuing violation" argument and the argument that the running of the statute of limitations should be tolled under that doctrine of equitable tolling.

The issue should come down to whether you start measuring the statute of limitations in such a case from the time the test is scored or when non-plaintiffs start to get hired as a result of the test.  Or, put differently, whether a different SOL standard applies to  disparate impact cases than to disprate treatment ones. Along the way, it will be interesting to see if the Court more generally adopts the "discovery rule" (the SOL starts to run when the plaintiffs figure out their interests have been affected) for both DI and DT.

Judge Posner applied the well-known Ricks case to say the SOL starts when the plaintiffs discover they had not been selected for the firefighter position.  Ricks involves a university teacher who was denied tenure, but did not lose his job until the subsequent terminal year of his contract had concluded.  The 7th Circuit reasoned that just like the SOL started to run in Ricks when the decision not to renew was made, so too the SOL in the Lewis DI case started to run when the firefighters found out they were not selected for the job, not when other applicants actually were selected.

I am not clear why the Court took certiorari on this case. Posner and his fellow panelists seemed to come out the way I would suspect a majority of the Court to come out. I guess we'll just have to wait and see; maybe oral argument will explain more to us.


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I have a few initial impressions from the argument that may go to your question. First, Justice Roberts appeared to be legitimately concerned about the policy implications of the City's position. Forcing candidates to file an EEOC charge within 300 days of being notified only that they were "Qualified" (but not "Highly Qualified") and that it was "not likely" - but still at least possible - that they would be hired in the near future would amount to requiring them to file charges before they really know what the consequences of the City's testing practice will be. Second, Justice Scalia asked questions suggesting that the plain text of Title VII provides that a disparate impact violation occurs when a classification (here, the test result cutoff) is "used". Thus, he may have problems with the City's position as a matter of statutory interpretation. These are just educated guesses based on some of the questions from today's argument, but they may shed some light on your question.

Posted by: Jason Bent | Feb 22, 2010 1:04:51 PM

Judging by the argument transcript, it seems the judges (left and right) were hammering the City's lawyer much more than the plaintiffs' lawyer. Of course, that may not track with the ruling, but it does seem the plaintiffs have the upper hand:

Posted by: Observer | Feb 22, 2010 1:30:00 PM

And neither the Ledbetter issue nor the continuing violation doctrine was mentioned at all. If the Court's focus is what the Justices' questions suggest, then there may be enough language in the statute to create a sort of continuing violation doctrine for disparate impact which would provide that a cause of action accrues each time candidates are classified and each time the classification is used.

Posted by: Marcia | Feb 22, 2010 1:49:23 PM

Slight correction: the group above the cutoff at issue was called "Well Qualified," not "Highly Qualified."

Posted by: jrb | Feb 22, 2010 1:51:55 PM

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