On November 30, 2009, the AAUP joined an amicus brief (.pdf) filed in the US Supreme Court. The brief was coordinated by the National Women’s Law Center and the National Partnership for Women and Families, and joined by 34 other public interest organizations. The amicus brief supported the petitioners’ appeal against the City of Chicago.
The plaintiffs were African-Americans who took the City of Chicago’s firefighter exam in 1995. Based on the scores from this exam, the City created a list dividing the over 26,000 firefighter candidates into three categories: “not qualified,” “qualified,” and “well qualified.” The City announced that it would only hire candidates from the “well qualified” category, and used the list at least 10 times over the next 5 years. White test-takers were 5 times more likely to be identified as “well-qualified” than African-American test-takers; as a result, 77% of the hired firefighters were white and only 9% were African-American. Petitioners, African-American firefighters who were categorized as “qualified” and not hired, claimed that the City’s use of the list to hire firefighters had a disparate impact on the basis of race in violation of Title VII.
Before bringing suit for employment discrimination, a Title VII plaintiff must file a claim with the Equal Employment Opportunity Commission (EEOC) within 300 days after the alleged unlawful employment practice occurred. The petitioners in Lewis filed their EEOC claim within 300 days of the first use of the list to hire candidates. However, the City of Chicago argued that the plaintiffs’ EEOC claim was untimely because it was filed more than 300 days after the creation of the list.
The federal trial court ruled for the plaintiffs, but the Seventh Circuit reversed, declaring the plaintiffs’ EEOC claim untimely. According to Judge Richard Posner, the only allegedly discriminatory act was the sorting of candidates into the “well-qualified,” “qualified,” or “not-qualified” categories. The hiring of candidates, the court held, was “the automatic consequence of the test scores rather than the product of a fresh act of discrimination.” Lewis v. City of Chicago, 528 F.3d 488, 491 (7th Cir. 2008).
The amicus brief argued that the Seventh Circuit’s rule ignored the plain language of Title VII and would lead to irrational results frustrating Title VII’s purpose. Title VII describes a violation as the “use” of a discriminatory employment practice, language that is facially broad enough to incorporate both an employer’s initial adoption of a practice and each instance of that practice’s implementation. Furthermore, even though a Title VII disparate impact claim is based on a practice’s effect on a protected group, the Seventh Circuit’s rule would require employees to file claims so early – within 300 days of the practice’s initial adoption or announcement – that the practical effects of the practice might still be unclear. The brief argued it could also allow discriminatory employment practices to continue in perpetuity, as long as they were not challenged within 300 days of their adoption.
On May 24, 2010, the Supreme Court unanimously reversed the Seventh Circuit (.pdf). The Supreme Court determined that the City’s use of the list (not just its creation of the list) could be a discriminatory act under Title VII. The Court distinguished between claims relying on an intentional discrimination theory and a disparate impact theory: “where, as here, the charge is disparate impact, which does not require discriminatory intent,” the Court said, it is irrelevant whether the discrimination alleged is the “present effects of past discrimination.” Even assuming discriminatory intent and disparate impact laws are “directed at the same evil,” the court said “it would not follow that their reach is therefore coextensive.” Justice Scalia, writing for the unanimous court, agreed that the Seventh Circuit interpretation was contrary to the plain language of Title VII, writing that it is “not for us” to “rewrite the statute so it covers only what we think is necessary to achieve what we think Congress really intended.”