The Supreme Court has agreed to decide whether the deadline for filing a disparate impact employment discrimination claim under Title VII of the Civil Rights Act should be 300 days after a discriminatory practice is announced or after it is implemented. In the case at issue – Lewis v. City of Chicago – the City of Chicago administered a written test to 26,000 firefighter applicants. The results of this test were divvied up by score into three levels: “well qualified,” “qualified,” and “not qualified.” Only about 11 percent of the 1,782 applicants who fell into the “well qualified” category were African American. Although applicants whose scores landed them in the “qualified” tier would be placed on the eligible list for the jobs since they passed the exam, shortly after the scores were announced the City reported that it expected to hire only about 600 of the 1,782 “well qualified” applicants, leading the remaining job hopefuls to believe they would not be hired. The actual hiring process took several months.
A class of approximately 6,000 African American applicants who fell into the “qualified” category filled suit against the City over a year later, claiming that the test had a disparate impact on minority candidates. A federal judge in Chicago initially ruled in favor of the plaintiffs. The Seventh Circuit reversed this decision last year, finding that the plaintiffs failed to file a claim with the Equal Employment Opportunity Commission (EEOC) within the statutorily-prescribed 300 days of the announcement of the test results. According to the Seventh Circuit, “[t]he first injury in this case was the classification of the black applicants as merely ‘qualified’ on the basis of a test that they contend was discriminatory.” The court therefore rejected the plaintiff’s argument that the discriminatory event was the application of the test results – i.e., the failure to hire the affected African American candidates. The Seventh Circuit also rejected the plaintiff’s “continuing violation” theory, explaining that “the statute of limitations begins to run upon injury (or discovery of the injury) and is not restarted by subsequent injuries.”
In their petition for Supreme Court review, the plaintiffs allege that the circuits are split on this issue of timeliness. The Second, Fifth, Ninth, Eleventh, and District of Columbia circuits, they claim, have held that each time an employer relies on a facially neutral policy that disparately impacts a protected class constitutes a new violation of Title VII. The Third and Sixth circuits, in contrast, have held that a claim ripens when the employees or applicants become aware of the alleged discriminatory practice.
The outcome of this case will be significant. If the Supreme Court agrees with the firefighter applicants, an employer might be subject to a disparate impact discrimination lawsuit years after an initially unchallenged policy is adopted.