The Supreme Court on Monday seemed supportive of arguments by Chicago minority firefighters that a new 300-day period for filing discrimination charges opened each time the city used scores from a discriminatory examination to hire someone.
John Payton, director-counsel and president of the NAACP Legal Defense and Educational Fund, told the justices that Chicago on 11 occasions used unlawful cutoff scores on a qualifying exam to make hiring decisions.
“There’s a violation [of Title VII of the Civil Rights Act] every time there’s a use,” he argued.
Lewis v. City of Chicago stems from a 1995 entry-level exam for firefighter positions. Based on test scores, the city divided 26,000 applicants into three categories: well qualified, qualified and not qualified. Although 37% of the applicants were African-American, only 11.5% of African-Americans were found to be “well qualified.” The city drew solely from the “well-qualified” pool when hiring 10 classes of firefighters between 1996 and 2001.
A class of about 6,000 African-Americans who passed the exam but were not in the “well-qualified” pool sued the city, alleging the exam had a disparate impact on African-Americans in violation of Title VII. The city conceded the test had a disparate impact but argued the suit was time-barred.
Yesterday’s arguments focused on the provision in Title VII requiring plaintiffs to file charges with the Equal Employment Opportunity Commission no more than 300 days after the unlawful employment action occurred. One of the plaintiffs in the suit had filed charges 430 days after the city announced the test results, but only 181 days after the second round of hiring based on the test results.
The U.S. Court of Appeals for the 7th Circuit, agreeing with the city, held that the limitations period began to run when the city placed the firefighters in the “qualified” category.
During arguments in the Supreme Court, Justice Samuel Alito Jr. told Payton that the language of Title VII may support his position, but the justice questioned Payton’s argument that his position represented the “best policy” under the law.
“I gather someone could file a disparate impact claim six or seven years later,” said Alito. “How does that square with Congress’ intent to have prompt filing of charges?”
Payton replied, “If you don’t say each use can be challenged, Chicago could take the message that once past the 300 days, it can use the unlawful practice over and over and over. The animating purpose of Title VII is eradication of discrimination. Chicago should have stopped using the qualifying score.”
Deputy Solicitor General Neal Katyal, sharing argument time with Payton, agreed, adding that a rule requiring people to file within 300 days of the city’s announcement of the test results would be divisive and would require the filing of charges before the applicants knew the consequences of the city’s action.
Benna Ruth Solomon, the city’s deputy corporation counsel, said the position of Payton and the Obama administration “cannot be squared with the statute.” But she immediately encountered a skeptical Justice Ruth Bader Ginsburg, who said the city’s position freezes the status quo “forever” and gives it a “free pass” after the initial 300 days.
Solomon countered that the disparate impact violation occurred when the firefighters were placed in the “qualified” category. “After that decision, nothing else that Chicago did adversely affected petitioners. They were out. We didn’t reject them each time.”