Oral Argument Today in Lewis v. City of Chicago – An Issue of Fundamental Fairness

By Fatima Goss Graves, Vice President for Education and Employment,
National Women's Law Center

Today the Supreme Court heard oral argument in Lewis v. City of Chicago. In that case, the Court examined the question of whether a Title VII plaintiff must file an EEOC charge within 300 days of when the discriminatory practice was adopted or announced, or if a plaintiff may also file within 300 days of when the practice was used by the employer. 

The outcome of this case could dramatically alter the ability of employees to challenge employment tests and may also severely limit the ability of plaintiffs to challenge other employment criteria, such as education requirements, credit checks or no-conviction policies that have an adverse impact on women and people of color. If the Supreme Court adopts the rule advocated by the City of Chicago, such discriminatory practices could be frozen in time.

The National Women’s Law Center and the National Partnership for Women & Families, along with over 30 other women’s rights and civil rights groups, submitted a brief in support of the petitioners in this case, a class of African American firefighters who were labeled “qualified” by the City of Chicago based on an entrance exam administered in 1995 and then not considered eligible for hiring each time the City used its exam to hire over a five year period. The plaintiffs filed their charge with the EEOC within 300 days of the first hiring from the list, but more than 300 days after being told of their placement in the “qualified” group. 

A plain reading of the disparate impact provision of Title VII makes clear that an unlawful employment practice occurs each time the employer “uses” a facially neutral practice that causes a disparate impact on the basis of protected class status. In other words, the statute of limitations period is triggered anew each time an employer applies a practice that causes a disparate impact to particular employees – or, each time it decides to “use” the list to hire or promote some employees or applicants and not others based on that practice.

Like in Ledbetter v. Goodyear Tire & Rubber Co., the core issue in this case is one of fundamental fairness - whether an employer should be able to use the results of a discriminatory test over and over again simply because workers did not file their claims within 300 days of the first time the results were used. Congress and President Obama recently rejected the narrow idea in Ledbetter that pay discrimination should be allowed to persist indefinitely through the enactment of the Lilly Ledbetter Fair Pay Act. Let’s hope that the Supreme Court gets this one right and that no legislative fix will be necessary – workers are counting on it.