Lewis Jr. v. City of Chicago Petitioners Brief on the Merits

    No. 08-974

In The

Supreme Court of the llniteh States

A r t h u r  L. L e w is , J r ., et al.,
Petitioners,

v.

C it y  o f  C h ic a g o ,
Respondent.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Seventh Circuit

PETITIONERS’ BRIEF ON THE MERITS

Clyd e  E. M u r p h y  
C h ica g o  La w y e r s ’ 
C o m m itte e  fo r  C iv il  
R ig h ts  U n d e r  La w , In c . 
100 N. LaSalle St. 
Chicago, IL 60602

J o h n  Pa y t o n  
Counsel of Record 

D ebo  P. A d e g b ile  
M a t t h e w  C o la n g e lo  
J o y  M ill ig a n  
R y a n  C. D o w n e r  
NAACP L e g a l  D e fe n se  & 

Ed u c a t io n a l  Fu n d , In c . 
99 Hudson St., 16th Floor 
New York, NY 10013 
(212) 965-2200

J o sh u a  Civ in  
NAACP L e g a l  D e fe n se  & 
Ed u c a t io n a l  F u n d , In c . 

1444 I St., NW, 10th Floor 
Washington, DC 20005 

Additional counsel listed inside cover



Ju d s o n  H. M in e r  
G e o r g e  F. Ga l l a n d , Jr . 
M in e r , Ba r n h il l  & 

Ga l l a n d , P.C.
14 W. Erie Street 
Chicago, IL 60610

M a t t h e w  J. P iers  
J o sh u a  K a r sh  
H u g h e s , So c o l , P ie r s , 
R e s n ic k  & D y m  L t d .

70 W. Madison Street 
Chicago, IL 60602

Pa t r ic k  O. Pa t t e r s o n , J r . 
La w  O ffic e  o f  Pa t r ic k  O. 

Pa t t e r s o n , S.C.
7841 N. Beach Drive 
Fox Point, WI 53217

Fa y  Cl a y t o n  
Cy n t h ia  H. Hy n d m a n  
R o b in s o n , Cu r l e y  & 

Cl a y t o n , P.C.
300 S. Wacker Drive 
Chicago, IL 60606

B r id g e t  A r im o n d  
357 E. Chicago Avenue 
Chicago, IL 60611



QUESTION PRESENTED
Under Title VII, a plaintiff seeking to bring suit 

for employment discrimination must first file a 
charge of discrimination with the EEOC within 300 
days after the unlawful employment practice oc­
curred. Where an employer adopts an employment 
practice that discriminates against African Ameri­
cans in violation of Title VII’s disparate impact pro­
vision, must a plaintiff file an EEOC charge within 
300 days after the announcement of the practice, or 
may a plaintiff file a charge within 300 days after 
the employer’s use of the discriminatory practice?



11

PARTIES TO THE PROCEEDINGS

The petitioners are Arthur L. Lewis, Jr., Gregory 
S. Foster, Jr., Arthur C. Charleston III, Pamela B. 
Adams, William R. Muzzall, Philippe H. Victor, 
Crawford M. Smith, and Aldron R. Reed, on behalf of 
a class of approximately 6,000 unsuccessful appli­
cants for entry-level Chicago firefighter jobs, along 
with the African American Fire Fighters League of 
Chicago, Inc., all of whom were plaintiffs and appel­
lees in the courts below. The African American Fire 
Fighters League of Chicago, Inc. is a not-for-profit 
corporation which has not issued stock and has no 
corporate parent.

The respondent is the City of Chicago, which was 
the defendant and appellant in the courts below.



Ill

TABLE OF CONTENTS
QUESTION PRESENTED ....................................   i
PARTIES TO THE PROCEEDINGS.....................  ii
TABLE OF CONTENTS.............................  iii
TABLE OF AUTHORITIES.......................................v
OPINIONS BELOW.....................................................1
JURISDICTION........................................................... 1
STATUTORY PROVISIONS INVOLVED............... 1
STATEMENT OF THE CASE....................................3
SUMMARY OF THE ARGUMENT......................... 14
ARGUMENT........................................   17
I. The text of Title VII establishes that a 

disparate-impact violation occurred, and a 
new charge-filing period started, every 
time the City filled firefighter vacancies...... 17
A. Under the plain meaning of § 703(k),

the City violated Title VII each time it 
used its practice of hiring only appli­
cants who scored 89 or above on the 
1995 test....................................................... 18

B. Sections 703(h) and 703(a)(2) confirm
that a new act of disparate-impact dis­
crimination occurred each time the 
City used its hiring practice......................23

C. Title VII was violated each time the
City used its hiring practice to fill fire­
fighter vacancies, even if the statute 
also was violated when the City scored 
and sorted applicants’ test results...........27



IV

II. Applying the plain meaning of Title VII’s
disparate-impact prohibition accords with 
this Court’s prior decisions............................... 30
A. Where discriminatory intent is not a

required element of a cause of action, 
a claim accrues when the impact of an 
employment practice is fe lt ..................... 31

B. This Court’s precedents establish that 
a charge-filing period begins each time
a present violation of Title VII exists.... 34

III. The court of appeals ignored the statutory
text and misread this Court’s cases.................37
A. There is no exception to liability for

uses of a practice that may be the con­
sequence of other violations......................37

B. The creation of an eligibility list is not
an intervening act that immunizes an 
illegal hiring practice..................................40

IV. An accrual rule that follows the statutory
text achieves the purposes of Title V II ..........44
A. Clear rules promote certainty...................44
B. A text-based approach balances the in­

terests of employees and employers....... 45
C. The court of appeals’ alternative en­

courages unnecessary charge-filing........48
CONCLUSION...... ............................................   50



V

TABLE OF AUTHORITIES

Cases
Adams v. City of Chicago, 469 F.3d 609 (7th 

Cir. 2006).................................................................41
Albemarle Paper Co. v. Moody, 422 U.S. 405

(1975).................. ....................................... 21-22, 25
American Tobacco Co. v. Patterson, 456 U.S.

63 (1982)......................................................  25, 43-44
Bailey v. United States, 516 U.S. 137 (1995).......  20
Bay Area Laundry & Dry Cleaning Pension 

Trust Fund v. Ferbar Corp. of California,
522 U.S. 192 (1997)..............................................  35

Bazemore v. Friday, 478 U.S. 385 (1986).............. 37
Burlington Northern Railroad Co. v. 

Oklahoma Tax Commission, 481 U.S. 454 
(1987).................................................... ..................29

Chandler v. Roudebush, 425 U.S. 840 (1976)......... 43
Connecticut v. Teal, 457 U.S. 440 (1982)........... 24-25
County of Washington v. Gunther, 452 U.S.

161 (1981).......................................................  27, 45
CSX Transportation, Inc. v. Georgia State 

Board of Equalization, 552 U.S. 9 (2007).......... 29
Delaware State College v. Ricks, 449 U.S. 250 

(1980).................................................... 34-36, 38-40
Dothard v. Rawlinson, 433 U.S. 321 (1977).... 20, 43
EEOC v. Commercial Office Products Co.,

486 U.S. 107 (1988) 46



VI

Federal Express Corp. v. Holowecki, 128 
S. Ct. 1147 (2008).................................................  45

Franks v. Bowman Transportation Co., 424 
U.S. 747 (1976)..........    25

Gratz v. Bollinger, 539 U.S. 244 (2003)....................42
Griggs v. Duke Power Co., 401 U.S. 424 

(1971)...............................................................passim

Guardians Association v. Civil Service 
Commission, 463 U.S. 582 (1983).... 20, 23, 26, 41

Guardians Association of the New York 
City Police Department v. Civil Service 
Commission, 633 F.2d 232 (2d Cir.
1980)...........................................................  23, 26, 41

International Brotherhood of Teamsters v.
United States, 431 U.S. 324 (1977).....................  36

Isabel v. City o f Memphis, 404 F.3d 404 (6th 
Cir. 2005).....................................   23

Jones v. United States, 529 U.S. 848 (2000) .........  20
Ledbetter v. Goodyear Tire & Rubber Co., 550 

U.S. 618 (2007).............................................. passim

Local No. 93, International Association of 
Firefighters v. City of Cleveland, 478 U.S.
501 (1986)..............................................................  46

Lorance v. AT&T Technologies, Inc.,
490 U.S. 900 (1989)..................................  15, 31-37

Lynch v. Alworth-Stephens Co., 267 U.S. 364 
(1925)................................................................

Mohasco Corp. v. Silver, 447 U.S. 807 (1980)..
43
45



National Railroad Passenger Corp. v. Mor­
gan, 536 U.S. 101 (2002)..............................passim

New York City Transit Authority v. Beazer,
440 U.S. 568 (1979)............................. ................  21

Pfaff v. Wells Electronics, Inc., 525 U.S. 55 
(1998).......................................................................44

Rawlings v. Ray, 312 U.S. 96 (1941).... ................ 35
Ricci v. DeStefano, 129 S. Ct. 2658

(2009)................................................... 12, 18, 46, 49
Rotella v. Wood, 528 U.S. 549 (2000)....................  44
United Air Lines, Inc. v. Evans, 431 U.S. 553 

(1977)................................................................. 34-36
Wards Cove Packing Co. v. Atonio, 490 U.S.

642 (1989)..................................................  19, 21-22
Watson v. Fort Worth Bank & Trust, 487 U.S.

977 (1988)......................................................... 21, 42
Watson v. United States, 552 U.S. 74 (2007)..........  20

Statutes

15 U.S.C. § 78p(b).......................................................42
28U.S.C. § 1254(1).......................................................1
29 U.S.C. § 206(d)(1)................................................. 33
29 U.S.C. § 207.......................................................... 33
29 U.S.C. § 255(a).......................................................33
42 U.S.C. § 2000e-2(a)(l)..........................   1
42 U.S.C. § 2000e-2(a)(2)................................. passim

42 U.S.C. § 2000e-2(h).............................   passim
42 U.S.C. § 2000e-2(k)(l)(A)............................passim

V ll



V l l l

42 U.S.C. § 2000e-2(k)(l)(A)(i)........................passim

42 U.S.C. § 2000e-2(k)(l)(A)(ii)................................19
42 U.S.C. § 2000e-2(k)(l)(C)................. 10, 19, 47-48
42 U.S.C. § 2000e-5(e)(l)..........................3, 8, 17, 23
42 U.S.C. § 2000e-5(e)(2)..................  32
42 U.S.C. § 2000e-5(e)(3)(A).....................................33
42 U.S.C. § 2000e-5(f)(l)............................................ 8
42 U.S.C. § 2000e-5(g)(l).........................................47
Civil Rights Act of 1964, Pub. L. No. 88-352,

78 Stat. 241........................................................1, 24
Civil Rights Act of 1991, Pub. L. No. 102-166,

105 Stat. 1071..........................18-19, 21, 24, 31-32
Equal Employment Opportunity Act of 1972,

Pub. L. No. 92-261, 86 Stat. 103.........................24
Lilly Ledbetter Fair Pay Act of 2009, Pub. L.

No. 111-2, 123 Stat. 5 ................................. ......... 33
Regulations

29 C.F.R. § 1607.1(A).................................................23
29 C.F.R. § 1607.5(D).................................................48
29 C.F.R. § 1607.5(H).................................................23
29 C.F.R. § 1607.14(B)(6).......................................... 23
29 C.F.R. § 1607.15.................................................... 48



IX

Other Authorities
Gregory Beyer, The Barred Door, N.Y.

Times, Feb. 13, 2009, at CY1..............................49
George Cooper & Richard B. Sobol, Seniority 

and Testing Under Fair Employment Laws:
A General Approach to Objective Criteria of 
Hiring and Promotion, 82 Harv. L. Rev.
1598 (1969).............................................................. 27

Barbara T. Lindemann & Paul Grossman, 
Employment Discrimination Law (4th ed.
2007)................................. ......................... 30, 36, 47

Senate Report No. 88-867 (1964)............................ 27
Supreme Court Rule 30 .1 ...................  1



1

OPINIONS BELOW

The opinion of the United States Court of Appeals 
for the Seventh Circuit, reversing the judgment of 
the district court, is reported at 528 F.3d 488 (7th 
Cir. 2008), and is reproduced at Pet. App. la-11a. 
The opinion of the United States District Court for 
the Northern District of Illinois, finding liability 
under Title VII against respondent City of Chicago, 
is unreported and is reproduced at Pet. i\pp. 12a- 
43a. The opinion of the district court finding that 
petitioners’ EEOC charges were timely is unreported 
and is reproduced at Pet. App. 44a-70a.

JURISDICTION

The court of appeals entered its judgment on 
June 4, 2008. Petitioners filed a timely petition for 
rehearing en banc, which the court of appeals denied 
on August 21, 2008. Pet. App. 71a. On November 5, 
2008, this Court extended the time for filing a peti­
tion for a writ of certiorari by sixty days. Order on 
Application No. 08A404. Petitioners filed a timely 
petition for certiorari. S. Ct. R. 30.1. This Court 
granted certiorari on September 30, 2009, and has 
jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED
Section 703(a) of Title VII of the Civil Rights Act 

of 1964, 42 U.S.C. § 2000e-2(a), provides:
(a) It shall be an unlawful employment prac­
tice for an employer —

(1) to fail or refuse to hire or to discharge 
any individual . . . because of such indi­
vidual’s race, color, religion, sex, or na­
tional origin; or



2

(2) to limit, segregate, or classify his em­
ployees or applicants for employment in 
any way which would deprive or tend to 
deprive any individual of employment op­
portunities or otherwise adversely affect 
his status as an employee, because of 
such individual’s race, color, religion, sex, 
or national origin.

Section 703(h) of Title VII, 42 U.S.C. § 2000e-2(h), 
provides in pertinent part:

[N]or shall it be an unlawful employment 
practice for an employer to give and to act 
upon the results of any professionally devel­
oped ability test provided that such test, its 
administration or action upon the results is 
not designed, intended or used to discrimi­
nate because of race, color, religion, sex or 
national origin.

Section 703(k)(l)(A) of Title VII, 42 U.S.C. § 2000e- 
2(k)(l)(A), provides:

(k) Burden of proof in disparate impact cases
(1)(A) An unlawful employment practice 
based on disparate impact is established 
under this subchapter only if -

(i) a complaining party demonstrates 
that a respondent uses a particular 
employment practice that causes a dis­
parate impact on the basis of race, 
color, religion, sex, or national origin 
and the respondent fails to demonstrate 
that the challenged practice is job re-



3

lated for the position in question and 
consistent with business necessity.

Section 706(e)(1) of Title VII, 42 U.S.C, § 2000e- 
5(e)(1), provides in pertinent part: “A charge under 
this section shall be filed . . . within three hundred 
days after the alleged unlawful employment practice 
occurred.”

STATEMENT OF THE CASE
On eleven separate occasions from 1996 to 2002, 

the City of Chicago hired firefighter candidates— 
more than a thousand in total—based on the results 
of its 1995 entry-level firefighter test. Although all 
applicants who scored 65 or higher passed the test 
and were fully qualified to perform as firefighters, 
the City hired only those applicants who scored 89 or 
above for ten full classes of firefighter candidates, 
and a portion of an eleventh class, during this pe­
riod. There was never any dispute that the City’s 
practice of hiring only applicants who scored 89 or 
above had a severe disparate impact on African 
Americans. In 2005, the trial court found that this 
conceded adverse impact was not justified by business 
necessity because the cut-off score of 89 provided no 
useful information regarding the relative abilities of 
test-passers and bore no demonstrable relationship to 
job performance. The court accordingly held that the 
City’s hiring practice discriminated against African 
American applicants in violation of Title VH’s dispa- 
rate-impact prohibition.

On appeal, the City did not contest the merits of 
those findings. Rather, the City challenged only the 
timeliness of the charges of discrimination that peti­
tioners filed with the Equal Employment Opportunity



4

Commission (EEOC). The Court of Appeals for the 
Seventh Circuit found petitioners’ charges untimely 
and reversed. The only question before this Court is 
whether petitioners were entitled to file charges 
within 300 days after each of the City’s eleven sepa­
rate uses of its hiring practice to fill firefighter va­
cancies, or whether petitioners were instead required 
to file charges within 300 days after the City in­
formed them of their test scores and announced its 
plan to base its hiring practice on those test results.

1. The City’s firefighter hiring practice. In
1995, the City administered a new examination for 
entry-level firefighter positions to more than 26,000 
applicants. Pet. App. 14a. After scoring the test, the 
City declared that applicants who scored 64 or below 
(out of a possible 100 points) were “not qualified” to 
be firefighters, a determination not challenged in 
this litigation. Id. at la-2a, 45a. The City also con­
cluded that every applicant scoring 65 or above had 
passed the test and possessed the cognitive ability to 
perform successfully as a firefighter. Id. at 19a.

Then, against the advice of the test developer, the 
City arbitrarily divided the pool of qualified persons 
who passed the test into two groups: applicants who 
scored 89 or above (whom the City called ‘Veil quali­
fied”) and those who scored between 65 and 88 
(whom the City called “qualified”). Id. at 34a, 45a. 
The City did not divide the pool of qualified appli­
cants into two because it had any factual basis to 
believe that individuals who scored 89 or above were 
the best qualified for the job of firefighter—or even 
that they were better qualified than individuals who 
scored between 65 and 88. Id. at 34a-35a. Rather, 
as the district court subsequently found, the 89 cut­



off score was a “statistically meaningless bench­
mark.” Id. at 34a.

On January 26, 1996, the City sent letters to all 
applicants notifying them of their test scores and the 
City’s plan for using the test results to hire firefight­
ers. JA 35-36; Pet. App. 46a. The City’s letter to 
applicants with scores between 65 and 88 indicated 
that their prospects for being hired were uncertain. 
The letter stated: “[I]t is not likely that you will be 
called for further processing. However, because it is 
not possible at this time to predict how many appli­
cants will be hired in the next few years, your name 
will be kept on the eligible list . . .  for as long as that 
list is used.” JA 35; Pet. App. 46a. Applicants with 
scores below 65 were told that they were not eligible 
and would no longer be considered. Pet. App. 47a.

Also on January 26, 1996, the City issued a press 
release announcing the general results of the test 
and its plan to select those who would proceed to the 
next stages in the hiring process by using a random 
lottery to choose only from among applicants who 
scored at or above the 89 cut-off score. Id.; JA 51-54. 
The subsequent stages included a physical abilities 
test, a background investigation, a medical examina­
tion, and a drug test. Pet. App. 14a-15a. Applicants 
who passed these stages would be hired as fire­
fighter candidates. Id. at 15a. Firefighter candi­
dates would become full-fledged firefighters after 
completing the Chicago Fire Department’s training 
program and passing a state certification exam. Id.

The City’s press release also described the racial 
makeup of the group that the City labeled “well 
qualified” and stated that the City was disappointed

5



6

with those statistics. Id. at 47a; JA 51, 54. Nonethe­
less, the City asserted that the test had been “fair.” 
JA54. Over the next several weeks, articles in the 
press reported on the disparate racial impact that the 
City’s hiring practice would have. Id. at 55-56, 59-60. 
These articles also quoted City officials who defended 
the fairness of the test. Id. at 74-75, 77.

The City subsequently conceded that the 89 cut-off 
score had a disparate impact on African American 
applicants. Pet. App. 12a-13a, 15a, 42a-43a; BIO 4. 
The City’s practice of hiring only applicants who 
scored 89 or above on the test “meant that white 
applicants were five times more likely than African- 
Americans to advance to the next stage of the hiring 
process.” Pet. App. 15a-16a.

2. The City’s uses of its hiring practice. Be­
tween May 1996 and October 2001, the City hired 
ten classes of firefighter candidates from the dispro­
portionately white pool of applicants who scored 89 
or above on the 1995 test. Id. at 16a; R. 405 at 4. 
The City made exceptions for certain paramedics 
and military veterans who had scores below 89. Pet. 
App. 16a.1

While filling its eleventh class of firefighter can­
didates, which was hired in November 2002, the City 
exhausted the pool of applicants with scores of 89 or

1 Although the City hired paramedics and military veterans 
with scores below 89, both the court of appeals and the district 
court referred for convenience to the City’s practice of hiring 
“only” applicants with scores of 89 or above for the ten classes 
of firefighter candidates hired from May 1996 through October 
2001. Pet. App. 4a, 12a-13a. Petitioners follow the same con­
vention here.



7

above. Id.; R. 405 at 4. To fill the remaining spaces 
in that class, and thereafter until 2007, the City 
selected at random from among applicants with 
scores between 65 and 88, even though the City had 
previously told those applicants that it was “not 
likely” that they would be selected. Pet. App. 16a, 
46a; BIO 4 n.l; JA 35. There was no evidence of any 
difference between the job performance of firefight­
ers hired with scores at or above 89 and those hired 
with scores below 89. Pet. App. 33a-37a.

3. Petitioners’ EEOC charges and lawsuit.
Petitioners are a class of approximately 6,000 Afri­
can Americans who scored between 65 and 88 and 
therefore possessed the cognitive ability to perform 
successfully as firefighters but were not hired by the 
City between May 1996 and November 2002 because 
they scored below the 89 cut-off score. R. 58; R. 59.

After the City announced its hiring practice, sev­
eral of the petitioners met with counsel to discuss 
their legal options. Pet. App. 48a. Lacking informa­
tion to challenge the City’s public assertions that its 
new firefighter hiring practice was “fair” under Title 
VII’s standards, counsel requested information from 
the City regarding the development of the 1995 test 
and the validation, if any, of the City’s practice of 
hiring only applicants who scored 89 or above. Id. at 
48a-49a. A series of delays ensued, in part because 
the test developer still had not completed a valida­
tion report documenting the examination and the 89 
cut-off score as of July 1996, which was six months 
after the City announced its hiring practice and 
declared it was “fair,” and two months after it hired 
the first class of firefighter candidates in May 1996. 
R. 74, Ex. K f t  4-6; JA 51-54, 74-75, 77; BIO 4. The



8

City produced the last of the requested information 
in January 1997. Pet. App. 48a-49a. Thereafter, on 
the advice of an expert consultant, counsel concluded 
that reasonable grounds existed to challenge the 
City’s hiring practice under Title VII. Id. at 49a.

To initiate Title VII litigation, petitioners were 
required to file charges of discrimination with the 
EEOC “within three hundred days after the alleged 
unlawful employment practice occurred.” 42 U.S.C. 
§ 2000e-5(e)(l).2 The first charge of discrimination 
by a petitioner was filed by Crawford M. Smith on 
March 31, 1997. Pet. App. 49a. That date was 430 
days after January 26, 1996, the date that the City 
first announced its hiring practice, but only 181 days 
after October 1, 1996, the date that the City used its 
hiring practice to fill its second class of firefighter 
candidates.3 Mr. Smith’s charge was filed before the 
City hired nine more classes of firefighter candidates 
between March 1997 and November 2002, in full or 
partial reliance on its practice of hiring only appli­
cants who scored 89 or above on the test.4

After receiving right-to-sue letters from the 
EEOC, see 42 U.S.C. § 2000e-5(f)(l), petitioners filed

2 In certain circumstances not present here, the limitations 
period is 180 days. See 42 U.S.C. § 2000e-5(e)(l).

3 On May 16, 1996, 319 days before Smith’s charge, the City 
had hired one earlier class of firefighters from among the 
applicants who scored 89 or above on the test. R. 405 at 4. 
Petitioners do not contend in this Court that their charges were 
timely with respect to hires made for that class.

4 The eleven hiring dates at issue are May 16, 1996; October 
1, 1996; March 4, 1997; October 1, 1997; February 2, 1998; 
February 16, 1999; December 1, 1999; July 17, 2000; February 
20, 2001; October 16, 2001; and November 1, 2002. R. 405 at 4.



9

this lawsuit in 1998, alleging that “[t]he City of Chi­
cago has used and continues to use as its threshold 
hiring criterion the results o f ’ the 1995 test to hire 
only applicants who scored 89 or above, in violation 
of Title VII’s disparate-impact prohibition. JA 1-2.

4. The district court’s timeliness ruling. In
February 2000, the City moved for summary judg­
ment on the ground that petitioners’ charges of dis­
crimination were untimely. R. 64. The City con­
tended that the only potential Title VII violation 
occurred in January 1996, when the City notified 
petitioners that they had scored below the 89 cut-off 
score and announced its practice of hiring only appli­
cants who scored 89 or above on the test. Pet. App. 
52a. Because petitioners failed to file charges within 
300 days after that date, the City contended that the 
suit was time-barred. Id.

The district court denied the City’s motion. The 
court concluded that if “the City’s examination had a 
disparate impact on African-American candidates, 
then the City’s ongoing use of the examination’s 
results—rather than some other, non-discriminatory 
criteria for candidate selection—has the same dispa­
rate impact,” id. at 60a; and thus the City’s “ongoing 
reliance on those results” would violate Title VII. Id. 
at 69a. Because petitioners’ charges were filed 
within 300 days of the second date on which the City 
used its practice of hiring only applicants who scored 
89 or above on the test, the district court held that 
the suit was not time-barred. Id. at 69a-70a.



10

5. The district court’s liability finding. The
district court certified a class in 1999, R. 59,5 and 
held a trial on the merits of petitioners’ disparate- 
impact claims in January 2004. Under § 703(k) of 
Title VII, when an employer “uses a particular em­
ployment practice that causes a disparate impact on 
the basis of race,” it violates Title VII’s disparate- 
impact prohibition unless (i) the employer demon­
strates that the practice is job-related and consistent 
with business necessity and (ii) there are no equally 
valid, less-discriminatory alternatives. 42 U.S.C. 
§ 2000e-2(k)(l)(A), (C); see also id. § 2000e-2(a)(2), 
(h).

At trial, the City conceded that the 89 cut-off 
score had a disparate impact on African American 
applicants, but defended its practice of hiring only 
applicants who scored 89 or above as job-related. 
Pet. App. 12a-13a, 15a, 28a, 42a-43a; BIO 4. After 
the trial concluded, the district court rejected this 
defense, holding that the City had unlawfully dis­
criminated against African Americans in violation of 
Title VII by repeatedly using its hiring practice to fill 
ten full classes (and a portion of an eleventh class) of 
firefighter candidates. Pet. App. 28a-43a.

The district court held that “the City failed to 
prove that test results could be used to predict fire­
fighter performance, i.e., that those who scored 89 or

5 The class consists of “all African American firefighter ap­
plicants who took and passed the 1995 written firefighter 
examination given by the City of Chicago who received a score 
of 65 or greater but less than 89, but who, as a result of their 
test scores, have been and continue to be denied the opportu­
nity to take the physical performance test and to be hired as 
firefighters.” R. 58 at 1.



11

higher on the 1995 Test were more qualified for the 
job than those who scored between 65 and 89.”6 Id. 
at 30a. The court found the City had known from 
the outset that the 89 cut-off score was “statistically 
meaningless” because, as the test developer had 
communicated to City officials, the cut-off score 
“failfed] to distinguish between candidates based on 
their relative abilities.” Id.; see also id. at 20a-22a, 
35a.

As the court also noted, the City had already ac­
knowledged in the course of defending another law­
suit that the “cut score was not set by the City be­
cause it believed that individuals who scored 89 or 
higher were the best qualified candidates for the job 
of firefighter,” or “that they were better qualified 
than individuals who obtained a score between 88 
and 65.” Id. at 34a-36a (internal quotation marks 
omitted). Rather, the City selected the 89 cut-off 
score over its test developer’s objection and for rea­
sons of “administrative convenience”—namely,
“simply to limit the number of candidates selected 
for further processing.” Id. at 34a-35a; see also id. at 
22a.

6 The district court also found that the test “was skewed 
towards one of the least important aspects of the firefighter 
position at the expense of more important abilities.” Pet. App. 
32a. The test had a heavily weighted component that required 
applicants to answer multiple-choice questions after watching a 
video demonstration about the operation of a fictitious device. 
Performance on this video component hinged, as the district 
court found, “almost entirely on a single skill—the candidate’s 
ability to take notes” during the video demonstration, which 
was “not [a] particularly important” skill for the firefighter 
position. Id. at 3 la-32a. Among the 46 identified abilities 
required for the job, note-taking ranked “dead last.” Id. at 32a.



12

The district court rejected the City’s assertion 
that its hiring practice was justified by “administra­
tive convenience,” finding that any legitimate admin­
istrative interest could have been satisfied by the 
equally valid and less-discriminatory alternative of 
selecting applicants “at random from the pool of 
candidates who passed the 1995 Test” by scoring 65 
or above. Id. at 35a; see also id. at 41a. The City, in 
fact, subsequently used this alternative from 2002 
through 2007 to hire numerous applicants with 
scores between 65 and 88 after it exhausted the pool 
of applicants with scores at or above 89. Id. at 16a; 
BIO 4 n.l. The court noted that despite this on-the- 
job experience with applicants from both pools of 
test-passers, the City presented no evidence that 
firefighters who scored between 65 and 88 performed 
worse on the job than those who scored 89 or above. 
Pet. App. 36a-37a.

Based on its holding, the district court entered 
judgment for petitioners and ordered injunctive 
relief. Id. at 43a; R. 405.

6. The court of appeals’ ruling. On appeal, 
the City did not defend its use of the 89 cut-off score 
to distinguish among applicants with passing scores. 
Nor did it challenge the merits of the district court’s 
finding of a Title VII disparate-impact violation.7 
Instead, the City argued only that petitioners’ EEOC

7 Accordingly, as this case comes to the Court, there is an 
unchallenged finding that the employment practice in question 
had a disparate impact and was neither job-related nor consis­
tent with business necessity—in contrast to Ricci v. DeStefano, 
129 S. Ct. 2658 (2009), where the Court found “no genuine 
dispute that the examinations were job-related and consistent 
with business necessity.” Id. at 2678.



13

charges were time-barred. See Pet. App. 2a; BIO 6. 
The United States Court of Appeals for the Seventh 
Circuit agreed and reversed. Pet. App. la-11a.

The court held that petitioners “were injured, and 
their claim accrued, when they were placed in the 
‘qualified’ category of the hiring list on the basis of 
their score in the firefighters’ test; for that categori­
zation delayed indefinitely their being hired.” Id. at 
9a. In the court’s view, the City’s subsequent hiring 
only of “well qualified” applicants “was the auto­
matic consequence of the test scores rather than the 
product of a fresh act of discrimination.” Id. at 4a. 
Hence, the 300-day period started running no later 
than the date petitioners were informed that they 
had been sorted into the lower-scored group of test- 
passers and the City announced its plan to hire only 
applicants who scored 89 or above. Id. Because the 
earliest charge was filed more than 300 days after 
that date, the court held that petitioners’ suit was 
time-barred. Id. at 3a-7a.8

The court remanded with instructions to the dis­
trict court to enter judgment for the City. Id. at 11a. 
After the court of appeals denied a petition for re­
hearing en banc, id. at 71a, this Court granted cer­
tiorari on September 30, 2009.

8 The court of appeals resolved two further questions not at 
issue in this Court. First, it held that the “continuing violation 
doctrine” did not apply to petitioners’ charges. Pet. App. 7a-9a. 
Second, the court held that the time for filing charges had not 
been equitably tolled by the City’s actions, including its delay 
in producing information about the development of its hiring 
practice. Id. at 9a-11a.



14

SUMMARY OF THE ARGUMENT

Petitioners alleged—and ultimately proved—that 
the City’s practice of hiring as entry-level firefighters 
only applicants who scored 89 or above on the 1995 
test violated Title VII’s prohibition against dispa­
rate-impact discrimination. The City used this prac­
tice in a manner that selected whites at five times 
the rate of African Americans, even though the 89 
cut-off score did not provide any information regard­
ing the relative abilities of test-takers and bore no 
demonstrable relationship to expected job perform­
ance. The text of Title VII compels the conclusion 
that petitioners timely filed their EEOC charges 
challenging the City’s repeated uses of this practice 
and thus requires reversal of the court of appeals’ 
holding to the contrary.

I. Section 703(k) provides that where an em­
ployer fails to establish the requisite business neces­
sity defense, “ [a]n unlawful employment practice 
based on disparate impact” occurs each time the 
employer “uses a particular employment practice 
that causes a disparate impact on the basis of race.” 
42 U.S.C. § 2000e-2(k)(l)(A). Here, on each occasion 
that the City filled firefighter vacancies, it “use[d]” 
the “particular employment practice” of hiring only 
applicants who scored 89 or above on its 1995 test. 
This practice had a severe disparate impact on Afri­
can Americans, and the City failed to meet its bur­
den of demonstrating that the practice was job- 
related. Accordingly, under the plain language of 
§ 703(k), each time the City hired firefighter candi­
dates, a Title VII disparate-impact violation occurred 
and a new charge-filing period began.



15

This plain meaning of § 703(k) is supported by 
other provisions of Title VII, including § 703(h), 
which provides that the utilization of a profession­
ally developed test is unlawful if “such test, its ad­
ministration or action upon the results is . . . used to 
discriminate.” 42 U.S.C. § 2000e-2(h). Actual hiring 
decisions are the quintessential “action upon the 
results” of a hiring test. Moreover, under the plain 
meaning of the statute, the City violated Title VII 
every time it used its hiring practice to fill firefighter 
vacancies, even if it also violated the statute when it 
took such preliminary steps as sorting test-takers 
based on their scores and creating an eligibility list. 
The fact that a Title VII violation may be related to 
earlier acts of discrimination does not prevent a new 
claim from accruing, and a new charge-filing period 
from commencing, with the occurrence of subsequent 
acts that independently violate the statute.

II. The Court has long held that a claim accrues 
when all elements of a Title VII violation are pre­
sent. Thus, in a disparate-treatment case—where 
the defining element is intent—the charge-filing 
period runs from the date of the employer’s adoption 
of an intentionally discriminatory practice, and does 
not begin to run again merely because the plaintiff 
later suffers the consequences of the original inten­
tional discrimination, absent a subsequent inten­
tionally discriminatory act. By contrast, in a dispa- 
rate-impact case, where discriminatory intent is not 
a required element, the Court has recognized that 
the charge-filing period “run[s] from the time that 
impact is felt.” Lorance v. AT&T Technologies, Inc., 
490 U.S. 900, 908 (1989). The Court confirmed this 
principle in Ledbetter v. Goodyear Tire & Rubber Co.,



16

550 U.S. 618 (2007). While holding that the plaintiff 
could not challenge her current salary under Title 
VII’s disparate-treatment prohibition because she 
had not filed a charge within the charge-filing period 
after her employer’s intentionally discriminatory 
pay-setting decision years earlier, the Court noted 
that she would not face the same “obstacles” if she 
challenged her current salary under the Equal Pay 
Act, because “the EPA does not require . . . proof of 
intentional discrimination.” Id. at 640.

III. The court of appeals ignored the statutory 
text and misread this Court’s decisions. The text of 
Title VII contains no exception for what the court of 
appeals characterized as the “automatic conse­
quence” of the City’s initial decision to sort test- 
passers into groups who scored above and below the 
89 cut-off score. To the contrary, § 703(k) prohibits 
employers from “us[ing]” a non-job-related hiring 
practice that causes a disparate impact, and § 703(h) 
forbids “action upon the results” of a discriminatory 
hiring test, regardless of whether those violations 
were consequences—automatic or otherwise—of 
earlier violations. Unlike the Title VII prohibition 
against disparate treatment, which forbids only acts 
taken with an unlawful motive but not the subse­
quent effects of those acts, consequences are the very 
touchstone of a disparate-impact violation.

There is, likewise, no basis in Title VII or this 
Court’s decisions for a rule limiting the City’s dispa­
rate-impact liability merely because it took the in­
termediate step of putting applicants’ names and 
test scores on an eligibility list for convenience, and 
then relied on the list in making hiring decisions. It 
is not uncommon for employers to use test results, as



17

the City did here, to make hiring or promotion deci­
sions for a number of years after a test is adminis­
tered. If Title VII prohibited only the creation of a 
test-based list, but not the City’s uses of its hiring 
practice to fill firefighter vacancies, the limitations 
period in this case would have expired long before 
the vast majority of those vacancies were ever filled. 
Title VII should not be construed to require such an 
odd result absent a clear and express statutory com­
mand. Here, the text of Title VII and this Court’s 
cases require the opposite result.

IV. The result in this case not only is compelled 
by the text of Title VII, but also achieves the pur­
poses of the statute. It promotes certainty, appro­
priately balances the interests of employees and 
employers, and avoids unnecessary charge-filing.

ARGUMENT

I. The text of Title VII establishes that a dis­
parate-impact violation occurred, and a 
new charge-filing period started, every time 
the City filled firefighter vacancies.
Section 706(e) of Title VII requires that an indi­

vidual seeking to challenge employment discrimina­
tion must first file a charge with the EEOC “within 
three hundred days after the alleged unlawful em­
ployment practice occurred.” 42 U.S.C. § 2000e- 
5(e)(1). In applying this provision, the “critical ques­
tions” are: “What constitutes an ‘unlawful employ­
ment practice’ and when has that practice ‘oc­
curred’?” Nat’l R.R. Passenger Corp. v. Morgan, 536 
U.S. 101, 110 (2002). The “answer [to these ques­
tions] varies with the practice.” Id.; see also id. at 
110-17 (recognizing different accrual rules for dis­



18

crete acts of intentional discrimination and hostile 
work environment claims).

Where, as here, the unlawful employment prac­
tice at issue violates Title VIPs disparate-impact 
prohibition, the answer to the Court’s timeliness 
questions is found in the text of § 703(k). 42 U.S.C. 
§ 2000e-2(k)(l)(A)(i). Under § 703(k), a violation of 
the statute occurred each of the eleven times the 
City filled firefighter classes “using” its unlawful 
employment practice of hiring only those applicants 
who scored 89 or above on the 1995 test—because, as 
the district court found, that cut-off score caused a 
disparate impact on African Americans and was a 
“statistically useless method of evaluating candi­
dates” that “provided no information regarding the 
relative abilities of the test-takers.” Pet. App. 34a- 
35a; see also id. at 42a-43a. This plain statutory 
meaning is confirmed by other pertinent provisions 
of Title VII, and holds true even if the statute also 
was violated by preliminary actions that the City 
took prior to hiring.

A. Under the plain meaning of § 703(k), the 
City violated Title VII each time it used 
its practice of hiring only applicants who 
scored 89 or above on the 1995 test.

1. Section 703(k), enacted as part of the Civil 
Rights Act of 1991, is “the disparate-impact [portion 
of the] statute.” Ricci v. DeStefano, 129 S. Ct. 2658, 
2673 (2009); see also Civil Rights Act of 1991, Pub. L. 
No. 102-166, § 105, 105 Stat. 1071, 1074-75.9 It

9 Section 703(k) was enacted to codify aspects of the dispa- 
rate-impact theory of Title VII liability “enunciated by the 
Supreme Court in Griggs . . . and in the other Supreme Court



19

provides that “ [a]n unlawful employment practice 
based on disparate impact is established” when an 
employer “uses a particular employment practice 
that causes a disparate impact.” 42 U.S.C. § 2000e- 
2(k)(l)(A). If a plaintiff establishes this prima facie 
showing of a disparate-impact violation, the em­
ployer is liable unless it successfully defends the 
practice as job-related and consistent with business 
necessity. Id.10

In determining when disparate-impact claims ac­
crue under § 703(k), the key statutory terms are 
“employment practice,” “uses,” and “causes a dispa­
rate impact.” Id. A disparate-impact violation oc­
curs, and therefore the charge-filing period starts 
running, whenever an employer “uses” a “particular 
employment practice” that “causes a disparate im­
pact” and as to which the employer is unable to dem­
onstrate job-relatedness. Id.

2. The Court has “stressed the need to identify 
with care the specific employment practice that is at 
issue.” Ledbetter, 550 U.S. at 624 (citing Morgan, 
536 U.S. at 110-11). The particular employment 
practice that petitioners challenged—and that the 
district court concluded was unlawful—was the 
City’s practice of hiring as firefighter candidates only 
those applicants who scored 89 or above on the 1995 
test. Pet. App. 13a, 29a, 35a, 42a-43a. It is well

decisions prior to Wards Cove Packing Co. v. Atonio, 490 U.S. 
642 (1989).” Civil Rights Act of 1991, § 3(2), 105 Stat. at 1071.

10 An employer who successfully demonstrates that an em­
ployment practice is justified by business necessity may still be 
liable if there are less-discriminatory alternatives that it re­
fused to adopt. 42 U.S.C. § 2000e-2(k)(l)(A)(ii), (C).



20

settled that hiring constitutes an employment prac­
tice that can be challenged as a disparate-impact 
violation. See Dothard v. Rawlinson, 433 U.S. 321, 
329 (1977) (holding that a prima facie disparate- 
impact case is established by showing “that the fa­
cially neutral standards in question select applicants 
for hire in a significantly discriminatory pattern”).

3. Title VII does not define the word “uses.” In 
the absence of a statutory definition, “the meaning of 
the verb ‘uses’ has to turn on the language as we 
normally speak it.” Watson v. United States, 552 
U.S. 74, 79 (2007). The Court has explained that 
“the word ‘use,’ in legislation as in conversation, 
ordinarily signifies ‘active employment,”’ Jones u. 
United States, 529 U.S. 848, 855 (2000) (quoting 
Bailey v. United States, 516 U.S. 137, 143 (1995)), 
which denotes “action and implementation.” Bailey, 
516U.S. at 145 (citing dictionary definitions).

Under this ordinary meaning, whenever an em­
ployer implements a hiring practice to fill specific job 
positions, it “uses” that practice. See, e.g., Guardi­
ans Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 585 
(1983) (describing a Title VII disparate-impact chal­
lenge to several written examinations “that were 
used to make entry-level appointments”). Applied 
here, the City actively employed and implemented— 
it used—its hiring practice on each of the eleven 
occasions that it selected certain test-passers (those 
who scored 89 or above) and not others (petitioners 
and others who scored between 65 and 88) to fill 
spots in a class of firefighter candidates.

From the outset of this litigation, the City’s own 
characterization of its hiring practice has relied on



21

the same plain-meaning understanding of the word 
“use.” In its answer to the complaint, the City stated 
that “since 1996 and continuing to the present time, 
it has used the results of the 1995 fire fighter en­
trance examination as part of its process for hiring 
probationary firefighters in the Chicago Fire De­
partment.” R. 163 (Am. Answer f  10); JA 22 (An­
swer f  10) (same); see also R. 163 (Am. Answer 1) 
(“Defendant admits that it has used and continues to 
use results of the 1995 fire fighter entrance examina­
tion as part of its fire fighter hiring process.” (em­
phasis added)); JA 16 (Answer f  1) (same). In other 
words, as the City conducted each new round of 
hiring from 1996 to 2002, it “use[d] a particular 
employment practice” for hiring that was based on 
the test results. 42 U.S.C. § 2000e-2(k)(l)(A)(i).

4. The City’s hiring practice “cause[d] a dispa­
rate impact,” id., each time it filled a class of fire­
fighter candidates, because each use disproportion­
ately excluded qualified African American applicants 
from its ongoing firefighter hiring.

Disparate impact is caused if the employment 
practice “in question select[s] applicants for hire or 
promotion in a racial pattern significantly different 
from that of the pool of applicants.” Albemarle Paper 
Co. v. Moody, 422 U.S. 405, 425 (1975); accord Wat­
son v. Fort Worth Bank & Trust, 487 U.S. 977, 994-95 
(1988). In Title VII cases, the relevant pool of appli­
cants encompasses those who are qualified for the 
position in question. See Wards Cove Packing Co. v. 
Atonio, 490 U.S. 642, 650-51 (1989), superseded by 
statute on other grounds, Civil Rights Act of 1991, 
§ 3(2), 105 Stat. at 1071; see also N.Y. City Transit 
Auth. v. Beazer, 440 U.S. 568, 585-86 (1979).



22

Here, each of the City’s repeated uses of its prac­
tice of hiring only applicants who scored 89 or above 
“cause [d] a disparate impact” under the terms of 
§ 703(k), based on a comparison of the racial makeup 
of those who were actually hired as firefighter can­
didates with the racial makeup of the pool of quali­
fied applicants. See Albemarle, 422 U.S. at 425; 
Wards Cove, 490 U.S. at 650-51. The pool of quali­
fied applicants in this case was the pool of individu­
als, including petitioners, who took the test and 
received a passing score of 65 or above. By passing 
the test, petitioners demonstrated that they were 
fully qualified to advance to the next stages of the 
hiring process. Pet. App. 19a. As the City conceded 
at trial, applicants who scored 89 or above were not 
more qualified than those who passed the exam but 
fell short of the 89 cut-off score. Id. at 36a-37a, 42a. 
But as a result of the City’s cut-off score, in each 
class of firefighter candidates, African American 
applicants were selected at rates far lower than the 
percentage that they represented in the pool of quali­
fied applicants. R. 366 at 1-4 & attach. B (shortfall 
analysis for the hire date of each class of firefighter 
candidates); Pet. App. 15a-16a.

In addition, although it was not petitioners’ bur­
den to establish the lack of job-relatedness, it is an 
adjudicated fact that the City’s repeated uses of this 
hiring practice were neither “job related” nor “consis­
tent with business necessity.” 42 U.S.C. § 2000e- 
2(k)(1)(A)(i). Under the district court’s unappealed 
findings, the City’s 89 cut-off score was “statistically 
meaningless” and revealed nothing about whether 
an applicant who scored 89 or above was more quali­



23

fied to be a firefighter than an applicant who scored 
between 65 and 88. Pet. App. 30a, 34a-35a.

5. Thus, under the plain text of § 703(k), each 
time the City used its practice of hiring only appli­
cants who scored 89 or above on the 1995 test, it 
committed an “unlawful employment practice based 
on disparate impact.” 42 U.S.C. § 2000e-2(k)(l)(A).11 
Under the charge-filing requirement of § 706(e), a 
charge filed within 300 days of any such use was 
therefore timely. Id. § 2000e-5(e)(l). Petitioners 
met this requirement by filing charges within 300 
days of the City’s use of its practice to hire a second 
class of firefighter candidates.

B. Sections 703(h) and 703(a)(2) confirm 
that a new act of disparate-impact dis­
crimination occurred each time the City 
used its hiring practice.

Sections 703(h) and 703(a)(2) of Title VII confirm 
that a new act of discrimination occurred under 
§ 703(k)—and a new charge-filing period started—

11 The unappealed findings of the district court are in ac­
cord with numerous other decisions holding that the use of a 
non-job-related cut-off score that causes a disparate impact in 
employment decisions constitutes a violation of Title VII. See, 
e.g., Isabel v. City of Memphis, 404 F.3d 404, 413-14 (6th Cir. 
2005); Guardians Ass’n of the N.Y. City Police Dep’t v. Civil 
Serv. Comm’n, 633 F.2d 79, 105-06 (2d Cir. 1980), affd on other 
grounds, 463 U.S. 582 (1983). The Uniform Guidelines on 
Employee Selection Procedures, which establish a federal stan­
dard for employment testing, see 29 C.F.R. § 1607.1(A), simi­
larly provide that “[w]here cutoff scores are used, they should 
normally be set so as to be reasonable and consistent with 
normal expectations of acceptable proficiency within the work 
force.” 29 C.F.R. § 1607.5(H); see also 29 C.F.R. 
§ 1607.14(B)(6).



24

each time the City used its practice of hiring only 
applicants who scored 89 or above on the test. Sec­
tion 703(k) is Congress’s most recent and compre­
hensive provision prohibiting disparate-impact dis­
crimination; but the Court recognized long before the 
enactment of § 703(k) that § 703(h) and § 703(a)(2) 
prohibit employment practices that operate to dis­
criminate on the basis of race, even if they are not 
motivated by discriminatory intent. See Griggs v. 
Duke Power Co., 401 U.S. 424, 426 n.l, 433-36 
(1971); accord Connecticut v. Teal, 457 U.S. 440, 450- 
52 (1982). Both § 703(h) and § 703(a)(2) were en­
acted as part of the Civil Rights Act of 1964, and 
were not modified when Congress enacted § 703(k) 
as part of the Civil Rights Act of 1991. See Civil 
Rights Act of 1964, Pub. L. No. 88-352, § 703(a)(2), 
(h), 78 Stat. 241, 255, 257.12 These provisions sup­
port the conclusion that a new act of disparate- 
impact discrimination occurs each time an employer 
fills specific job vacancies by using a hiring practice 
that causes a non-job-related racially adverse im­
pact.

1. The “ability test” provision of § 703(h) pro­
vides that it shall not “be an unlawful employment 
practice for an employer to give and to act upon the

12 As enacted in 1964, Title VII exempted state and local 
employers such as the City. See Civil Rights Act of 1964, 
§ 701(b), 78 Stat. at 253. Congress amended Title VII in 1972 
to include state and local governments as covered employers. 
See Equal Employment Opportunity Act of 1972, Pub. L. No. 
92-261, § 2(1), 86 Stat. 103, 103. The Equal Employment 
Opportunity Act of 1972 also amended § 703(a)(2) to provide 
that “applicants for employment” are protected by this section. 
Equal Employment Opportunity Act of 1972, § 8(a), 86 Stat. at 
109.



25

results of any professionally developed ability test 
provided that such test, its administration or action 
upon the results is not designed, intended or used to 
discriminate because of race.” 42 U.S.C. § 2000e- 
2(h) (emphases added). The Court has described 
§ 703(h) as “defining what is and what is not an 
illegal discriminatory practice.” Am. Tobacco Co. v. 
Patterson, 456 U.S. 63, 69 (1982) (quoting Franks v. 
Bowman Transp. Co., 424 U.S. 747, 761 (1976)). 
Section 703(h) thus provides, in certain cases, a 
defense to an employer’s “action upon the results” of 
a professionally developed employment test. 42 
U.S.C. § 2000e-2(h). Employers may act upon the 
results of such a test unless that action (or the test 
or its administration) is “designed, intended or used 
to discriminate.” Id.

This provision in § 703(h) makes sense only if 
“action upon the results” of a discriminatory, non- 
job-related test is included among the unlawful em­
ployment practices that the statute generally for­
bids—which it clearly is. In Griggs, this Court relied 
on § 703(h) to invalidate an employer’s use of general 
intelligence tests to make job assignment and pro­
motion decisions, because those selection devices had 
an adverse effect on African American employees 
and were not job-related. Griggs, 401 U.S. at 425-28, 
433-36; see also id. at 436 (“What Congress has for­
bidden is giving these devices and mechanisms con­
trolling force unless they are demonstrably a rea­
sonable measure of job performance.”); Teal, 457 
U.S. at 451-52; Albemarle, 422 U.S. at 425 & n.21.

The proscription contained in § 703(h) plainly en­
compasses the City’s practice of hiring only appli­
cants who scored 89 or above on the test. Each use



26

of that hiring practice constituted “action upon the 
results” of a test in a manner that was “used to dis­
criminate” against petitioners, contrary to § 703(h). 
See Guardians Assn of the N.Y. City Police Dep’t v. 
Civil Serv. Comm’n, 633 F.2d 232, 249 (2d Cir. 1980) 
(holding that “the results of the [unlawful employ­
ment] tests were in effect being ‘used to discrimi­
nate,’ in direct contravention of § 703(h) of Title VII, 
each time a member of the plaintiff class was denied 
a chance to fill a vacancy”), aff’d on other grounds, 
463 U.S. 582 (1983).

2. This conclusion is further confirmed by 
§ 703(a)(2), which provides that it is an “unlawful 
employment practice . . .  to limit, segregate, or classify 
. . . employees or applicants for employment in any 
way which would deprive or tend to deprive any 
individual of employment opportunities or otherwise 
adversely affect his status as an employee, because 
of such individual’s race.” 42 U.S.C. § 2000e-2(a)(2).

The plain text of § 703(a)(2), which embraces all 
employment practices that ‘limit” “applicants for 
employment” and thereby “deprive . . . any individual 
of employment opportunities,” id., encompasses each 
of the City’s rounds of hiring only applicants who 
scored 89 or above on the 1995 test.13 Each use of 
this practice “limit[ed]” the “applicants for employ­
ment” that the City considered, and consequently 
“deprive[d]” petitioners of specific “employment oppor­
tunities” for which they had previously applied and

13 As discussed infra Part I.C, this is so even if the statute 
also would prohibit earlier steps in the City’s hiring process, 
including the sorting of candidates into groups based on their 
test scores.



27

proved themselves qualified by passing the test. Id. 
The City therefore violated § 703(a)(2) each time it 
failed to hire petitioners and instead filled vacancies 
from the disproportionately white pool of applicants 
with scores of 89 or above.

This conclusion is bolstered by the Court’s recogni­
tion that “a ‘broad approach’ to the definition of equal 
employment opportunity is essential to overcoming 
and undoing the effect of discrimination.” County of 
Washington v. Gunther, 452 U.S. 161, 178 (1981) 
(quoting S. Rep. No. 88-867, at 12 (1964)). Section 
703(a)(2) “manifests [Congress’s] . . . intention to de­
fine discrimination in the broadest possible terms.” 
George Cooper & Richard B. Sobol, Seniority and 
Testing Under Fair Employment Laws: A General 
Approach to Objective Criteria of Hiring and Promo­
tion, 82 Harv. L. Rev. 1598, 1612 (1969).

Sections 703(h) and 703(a)(2) thus confirm that a 
Title VII disparate-impact claim accrues each time 
an employer deprives African Americans of employ­
ment opportunities by using a practice that does not 
validly distinguish between the qualifications of the 
disproportionately white group that are hired and 
the African Americans who are not.

C. Title VII was violated each time the City 
used its hiring practice to fill firefighter 
vacancies, even if the statute also was 
violated when the City scored and sorted 
applicants’ test results.

The outcome of the foregoing statutory analysis is 
not altered by the fact that before using its hiring 
practice to fill multiple classes of firefighter candi­
dates, the City took a number of preliminary steps: it



28

developed, administered, and scored the test; it 
made the decision to apply an 89 cut-off score to sort 
test-passers into “well qualified” and “qualified” 
groups; it created an eligibility list based on that 
sorting; and it notified applicants of their scores and 
announced its plan to hire, for an indefinite period of 
time, only applicants who scored 89 or above on the 
test. Pet. App. 45a-48a. Even if one or more of these 
preliminary steps independently violated Title VII, 
the City also violated the statute each time it used 
its hiring practice to fill positions in a class of fire­
fighter candidates.

1. Where there are recurring violations of Title 
VII, the fact that the later violations may be related 
to earlier acts of discrimination does not prevent a 
new claim from accruing (and a new charge-filing 
period from commencing) with the occurrence of each 
subsequent act that independently violates the stat­
ute. This is so even where the aggrieved individuals 
had knowledge of the earlier acts of discrimination 
at the time those earlier acts occurred.

As the Court explained in National Railroad Pas­
senger Corp. v. Morgan, “ [t]he existence of past acts 
and the employee’s prior knowledge of their occur­
rence . . . does not bar employees from filing charges 
about related discrete acts so long as the acts are 
independently discriminatory and charges address­
ing those acts are themselves timely filed.” 536 U.S. 
at 113; see also Ledbetter, 550 U.S. at 636 (“[A] free­
standing violation may always be charged within its 
own charging period regardless of its connection to 
other violations.”).



29

The City’s preliminary steps in this case did not 
prevent new Title VII disparate-impact claims from 
accruing each time the City used its hiring practice 
to fill vacancies in a manner that disproportionately 
rejected qualified African American candidates. As 
the district court succinctly stated, if an examination 
used to sort applicants has an unlawful disparate 
impact, then an employer’s use of the test scores to 
hire applicants “has the same disparate impact.” 
Pet. App. 60a.

2. Sections 703(k) and 703(h) confirm that free­
standing disparate-impact violations are separately 
actionable even if related to prior violations. Sec­
tion 703(k) provides that a disparate-impact violation 
is established if an employer “uses” a practice that 
“causes a disparate impact”; nothing in the text limits 
the scope of this prohibition to the sorting of test re­
sults to create an eligibility list, to the adoption or 
announcement of such a practice, or to its first use. 42 
U.S.C. § 2000e-2(k)(l)(A). Section 703(h) similarly 
prohibits the “use[ ]” of a test to discriminate, with 
no language to suggest that when one use of a test is 
related to subsequent uses, only the initial use of the 
test is prohibited. Id. § 2000e-2(h); see CSX Transp., 
Inc. v. Ga. State Bd. of Equalization, 552 U.S. 9, 19 
(2007) (rejecting a statutory interpretation that 
“depends upon the addition of words to a statutory 
provision which is complete as it stands” (quoting 
Burlington N. R.R. Co. v. Okla. Tax Comm’n, 481 
U.S. 454, 463 (1987))).

In addition, § 703(h) provides that a discrimina­
tory “test,” “its administration,” and “action upon the 
results” can each be violations of Title VII, notwith­
standing that these violations are necessarily related



30

to one another. 42 U.S.C. § 2000e-2(h). Otherwise, 
the statute would lead to the illogical conclusion that 
the City’s use of the test results to hire firefighters 
was not “action upon the results” of the test.

A contrary reading would also be inconsistent 
with the purposes of Title VII’s disparate-impact 
prohibition. Congress was not simply concerned 
with the opportunity to receive a grade on a test or to 
be placed on an eligibility list. “Passing a test, or 
being put on an eligibility list, is only a means to the 
ultimate end of hiring, promotion, or other selec­
tion.” Barbara T. Lindemann & Paul Grossman, 1 
Employment Discrimination Law 138 (4th ed. 2007). 
Rather, a core concern of Congress was to eliminate 
employment practices that are discriminatory in 
operation—namely, policies that repeatedly deny 
jobs or other opportunities to members of a particu­
lar group. It is the repeated use of such practices, 
and their cumulative effect over time, that “operate 
to ‘freeze’ the status quo” of racial inequality. 
Griggs, 401 U.S. at 430.
II. Applying the plain meaning of Title VIPs

disparate-impact prohibition accords with
this Court’s prior decisions.
Consistent with the plain meaning of Title VII’s 

disparate-impact prohibition, the Court has ac­
knowledged that where discriminatory intent is not 
a required element of a cause of action, a claim ac­
crues when an employer uses a non-job-related em­
ployment practice and employees or applicants con­
sequently experience its adverse effect. The Court’s 
decisions regarding claim accrual in the context of 
Title VII’s separate prohibition on disparate-



31

treatment discrimination—where intent is the defin­
ing element of the cause of action-—do not require a 
contrary result.

A. Where discriminatory intent is not a re­
quired element of a cause of action, a 
claim accrues when the impact of an em­
ployment practice is felt.

Although this Court has not decided when a Title 
VII disparate-impact claim accrues, its prior decisions 
strongly point to the result required by the text of 
§ 703(k). The Court has noted that a violation occurs 
and a claim accrues whenever the employer uses a 
non-job-related employment practice and employees or 
applicants consequently experience its disparate im­
pact.

In Lorance v. AT&T Technologies, Inc., the plain­
tiffs were demoted through the operation of a senior­
ity system in a collective bargaining agreement. 490 
U.S. at 901-02. The Court held that the plaintiffs 
had no claim that the demotions violated Title VITs 
prohibition on disparate-treatment discrimination, 
because the demotions were the neutral result of 
applying a seniority system adopted by the employer 
long before the charge-filing period commenced; 
hence, the post-demotion charges were not timely 
filed within 300 days of any disparate-treatment 
violation. Id. at 905-06.14

14 In response to this holding in Lorance, Congress 
amended Title VII to provide that discrimination based on an 
intentionally discriminatory seniority system occurs “when the 
seniority system is adopted, when an individual becomes sub­
ject to the seniority system, or when a person aggrieved is 
injured by the application of the seniority system.” Civil Rights



32

The Court contrasted its conclusion, however, 
with the result that would have been reached in a 
disparate-impact case. The Court noted that the 
plaintiffs’ allegations “would ordinarily suffice to 
state a claim” for disparate-impact discrimination, 
except that § 703(h) protects bona fide seniority 
systems from challenge on disparate-impact 
grounds. Lorance, 490 U.S. at 904-05. The Court 
then explained that if the special seniority-system 
provision in § 703(h) had not applied and the “claim 
asserted [had been] one of discriminatory impact,” 
the “statute of limitations [would] run from the time 
that impact is felt.” Lorance, 490 U.S. at 908; see 
also id. at 906 (stating that under this scenario, 
“suits [could be brought] against the later effects of 
the system on disparate-impact grounds” (emphasis 
omitted)). The plaintiffs in Lorance “felt” the dispa­
rate impact of the seniority system (and experienced 
its “later effects”) at the time of their demotions. Id. 
at 906, 908.

Similarly, in other contexts where intent is not a 
defining element of the claim, the Court has also 
suggested that the limitations period is triggered by 
each use of a challenged employment practice that 
causes particular employees to suffer an adverse 
impact. In Ledbetter, for example, the plaintiff al­
leged that, as early as 1979, she had begun receiving 
intentionally discriminatory performance evalua­
tions; but she did not file an EEOC charge until 
1998, when she contended only that the disparity 
between her salary and that of similarly-situated

Act of 1991, § 112, 105 Stat. at 1078-79 (codified at 42 U.S.C. 
§ 2000e-5(e)(2)).



33

men was the result of intentional discrimination 
because her employer based its salary decisions on 
her prior allegedly discriminatory performance 
evaluations. 550 U.S. at 621-22, 624, 628. The 
Court held that the plaintiff s charge was not timely 
because she “ma[de] no claim that intentionally 
discriminatory conduct occurred during the charging 
period.” Id. at 628.15

At the same time, the Court carefully distin­
guished the plaintiffs Title VII disparate-treatment 
claim from other possible claims that would not have 
required a showing of discriminatory intent. The 
Court explained that the plaintiff “would not face the 
Title VII obstacles that she now confronts” under the 
Equal Pay Act (EPA) because “the EPA does not 
require . . . proof of intentional discrimination.” Id. 
at 640 (citing 29 U.S.C. § 206(d)(1)). The Court also 
distinguished statute-of-limitations rules for viola­
tions of the minimum wage and overtime provisions 
of the Fair Labor Standards Act (FLSA)—which 
would again have rendered the plaintiffs claims 
timely—because those provisions of the FLSA “do[ ] 
not require proof of a specific intent to discriminate.” 
Id. at 641 (citing 29 U.S.C. §§ 207, 255(a)).

Lorance and Ledbetter therefore strongly support 
the conclusion that follows from the text of 
§ 703(k)—that a new claim of disparate-impact dis­

15 In response to Ledbetter, Congress amended Title VII to 
provide that discrimination in compensation occurs “when an 
individual is affected by application of a discriminatory com­
pensation decision or other practice, including each time wages, 
benefits, or other compensation is paid.” Lilly Ledbetter Fair 
Pay Act of 2009, Pub. L. No. 111-2, § 3, 123 Stat. 5, 5-6 (codified 
at 42 U.S.C. § 2000e-5(e)(3)(A)).



34

crimination accrued in this case each time the City 
used its practice of hiring only applicants who scored 
89 or above on the test. Petitioners suffered—or 
“felt,” as Lorance put it—a non-job-related disparate 
impact from that hiring practice on each occasion 
when the City passed over them and filled a class of 
firefighter candidates with white applicants who 
possessed no greater qualifications.

B. This Court’s precedents establish that a 
charge-filing period begins each time a 
present violation of Title VII exists.

Notwithstanding the discussion of Title VII dis­
parate-impact claims in Lorance, the holdings in all 
of this Court’s prior cases involving the accrual of 
Title VII claims have addressed challenges to inten­
tional discrimination under Title VII’s disparate- 
treatment prohibition. See, e.g., Ledbetter, 550 U.S. 
at 624; Morgan, 536 U.S. at 105-06; Lorance, 490 
U.S. at 905-09; Del. State Coll. v. Ricks, 449 U.S. 
250, 257-58 (1980); United Air Lines, Inc. v. Evans, 
431 U.S. 553, 557-60 (1977). As a result, these cases 
do not control accrual of claims under the distinct 
statutory text of Title VII’s disparate-impact prohibi­
tion. 42 U.S.C. § 2000e-2(a), (h), (k)(l)(A).

Nevertheless, the Court’s disparate-treatment 
cases have applied a basic principle that is fully 
consistent with the disparate-impact claim-accrual 
rule that results from the plain meaning of § 703(k). 
The Court has held that a Title VII cause of action 
accrues, and thus a new charge-filing period starts, 
when and only when an employer’s actions satisfy— 
at the time of those actions—each of the required 
elements of a particular type of Title VII violation.



35

See, e.g., Ricks, 449 U.S. at 258 (holding that the 
timeliness of an EEOC charge turns on “whether any 
present violation existjed]” within the charge-filing 
period (quoting Evans, 431 U.S. at 558)); see also 
Ledbetter, 550 U.S. at 624-25; Morgan, 536 U.S. at 
112-13; Lorance, 490 U.S. at 905-08. Conversely, if 
the employer’s actions do not satisfy the required 
elements at the time of those actions, then those 
actions do not constitute a Title VII violation .16

This analysis explains the Court’s holdings in 
Ledbetter, Lorance, Ricks, and Evans. In each of 
those cases, the Court held that a plaintiff had not 
established discriminatory intent—“the defining 
element” of a Title VII disparate-treatment violation, 
Ledbetter, 550 U.S. at 624—within the EEOC 
charge-filing period. In each case, the fact patterns 
were similar. An employer carried out two employ­
ment actions: the first was allegedly motivated by 
discriminatory intent, but the second was not. Thus, 
the employer’s second action was not a Title VII 
disparate-treatment violation at all, because it 
lacked the element of discriminatory intent required 
to establish a “present violation” in its own right. 
Evans, 431 U.S. at 558 (emphasis omitted). The 
Court held in each case that a violation occurred, 
and a charge-filing period started, only when the 
intentionally discriminatory action (the first action) 
was taken—and not later, when its consequences

16 This rule is consistent with “the standard rule that the 
limitations period commences when the plaintiff has ‘a com­
plete and present cause of action.’” Bay Area Laundry & Dry 
Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 
192, 201 (1997) (quoting Rawlings v. Ray, 312 U.S. 96, 98 
(1941)).



36

were felt.17 See, e.g., Ledbetter, 550 U.S. at 637; 
Lorance, 490 U.S. at 905-09; Ricks, 449 U.S. at 258; 
Evans, 431 U.S. at 558. These disparate-treatment 
cases establish that intent associated with prior acts 
cannot be “shift[ed]” to later acts; in a disparate- 
treatment case, a violation requires present dis­
criminatory intent. Ledbetter, 550 U.S. at 629.

In contrast to these disparate-treatment cases, 
the required elements in a Title VII disparate- 
impact case do not include discriminatory intent but 
rather the use of an employment practice that causes 
an unjustified disparate impact on the basis of race. 
42 U.S.C. § 20Q0e-2(k)(l)(A); Lorance, 490 U.S. at 
908; see also Lindemann & Grossman, 1 Employment 
Discrimination Law 110 (“[Djisparate treatment 
focuses on discriminatory intent, while adverse im­
pact focuses on discriminatory consequences.”). As 
this Court has explained, “good intent or absence of 
discriminatory intent does not redeem employment 
procedures . . . that operate as ‘built-in headwinds’ 
for minority groups and are unrelated to measuring 
job capability.” Griggs, 401 U.S. at 432; accord Int’l 
Bhd. of Teamsters v. United States, 431 U.S. 324, 
335-36 n.15 (1977) (“Proof of discriminatory motive 
. . .  is not required under a disparate-impact the­
ory.”). Just as the Lorance plaintiffs could have 
proved all the elements of a disparate-impact viola­
tion at the time of their demotions (but for the spe­
cial protection that Title VII provides for seniority 
systems), see 490 U.S. at 904, 908, the required ele­

17 None of these cases involved a disparate-treatment pat- 
tern-or-practice claim. The Court has expressly left open the 
timely filing question with respect to such claims, Morgan, 536 
U.S. at 115 n.9, and need not resolve that issue in this case.



37

ments of a disparate-impact claim were established 
here each time the City used its hiring practice to 
deny petitioners specific firefighter positions.18
III. The court of appeals ignored the statu­

tory text and misread this Court’s cases.
The court of appeals ignored the statutory text of 

Title VII’s disparate-impact prohibition. The court 
instead provided two rationales for concluding that 
petitioners’ charges were untimely filed—both of 
which are unmoored from the statutory text and 
inconsistent with congressional intent and this 
Court’s prior cases.

A. There is no exception to liability for uses 
of a practice that may be the conse­
quence of other violations.

1. The court of appeals concluded that the City’s 
discrimination against petitioners was “complete,” and 
their claims thus accrued, no later than the date that

18 The Court’s treatment of challenges to facially discrimi­
natory policies further demonstrates that the accrual of Title 
VII claims depends on the required elements of the particular 
type of violation at issue. The Court has explained that where 
an employer adopts a practice that discriminates on its face 
and repeatedly uses that practice to make employment deci­
sions, each use of the practice evidences discriminatory intent 
and is therefore a separate Title VII violation. Thus, in 
Ledbetter, the Court explained that when an employer main­
tains a pay structure that facially discriminates on the basis of 
race, it “can surely be regarded as intending to discriminate on 
the basis of race as long as the structure is used.” 550 U.S. at 
634; see also Lorance, 490 U.S. at 912 n.5 (“[A] facially dis­
criminatory system . . .  by definition discriminates each time it 
is applied.”); Bazemore v. Friday, 478 U.S. 385 (1986) (per 
curiam); id. at 394-96 (Brennan, J., concurring).



38

the City announced its plan for hiring only applicants 
who scored 89 or above on the test. Pet. App. 4a, 6a. 
In the court of appeals’ view, the City’s later uses of 
its hiring practice to fill vacancies were the “auto­
matic consequence” of its prior decision to sort test- 
passers into groups of applicants who scored above 
and below the 89 cut-off score and, for that reason, did 
not independently violate Title VIPs disparate-impact 
prohibition. Id. at 4a.

But that characterization does not render the 
City’s reliance on the 89 cut-off score for repeated 
rounds of hiring anything other than a statutorily 
proscribed “use.” There is no statutory exception in 
either § 703(k) or § 703(h) for “uses” that are the 
“automatic consequence” of other uses. 42 U.S.C. 
§ 2000e-2(h), (k)(l)(A); see supra Part I.C. In dispa- 
rate-impact analysis, a discriminatory consequence 
is precisely what Title VII forbids: “Congress di­
rected the thrust of the Act to the consequences of 
employment practices.” Griggs, 401 U.S. at 432.19

2. The court of appeals justified its reasoning by 
reference to this Court’s decision in Ricks. Pet. App. 
4a (citing Ricks, 449 U.S. at 257-58). But Ricks was 
a Title VII disparate-treatment case that did not 
purport to decide when a claim accrues in a dispa­
rate-impact case.

19 In any event, on the facts of this case, the City’s repeated 
uses of its unlawful hiring practice were not the automatic 
consequence of its decision to sort applicants based on an 89 
cut-off score. Even after the City announced its hiring practice, 
it had to make other decisions each time it filled firefighter 
classes. For instance, it needed to determine the number of job 
openings and to decide whether this hiring practice still con­
trolled. Pet. App. 16a; BIO 4 n.l.



39

Moreover, the court of appeals misread Ricks. In 
Ricks, a college professor alleged that his denial of 
tenure had been the result of intentional discrimina­
tion on the basis of national origin, but he did not 
file an EEOC charge within the charge-filing period 
after his employer notified him of the tenure denial. 
449 U.S. at 252-54. Rather, he filed more than a 
year later, shortly before the expiration of the addi­
tional one-year terminal contract that professors 
denied tenure customarily received. Id. This Court 
concluded that “the only alleged discrimination oc­
curred . . .  at the time the tenure decision was made 
and communicated to Ricks. That is so even though 
one of the effects of the denial of tenure—the even­
tual loss of a teaching position—did not occur until 
later.” Id. at 258.

The court of appeals erroneously inferred that 
Ricks established an “automatic consequence” excep­
tion to disparate-impact liability based on this 
Court’s comment that the expiration of the profes­
sor’s one-year terminal contract was not a distinct 
disparate-treatment violation because it was “a de­
layed, but inevitable, consequence of the denial of 
tenure.” Id. at 257-58. But that comment merely 
explained why the termination of the professor’s one- 
year contract was not intentionally discriminatory, 
and therefore did not satisfy at the time of termina­
tion the defining element of a disparate-treatment 
claim. See id. at 258, 262. The Court did not pur­
port to create any sort of broader rule.

The court of appeals’ analysis also is contrary to 
this Court’s statements that “a freestanding viola­
tion may always be charged within its own charging 
period regardless of its connection to other viola­



40

tions.” Ledbetter, 550 U.S. at 636; see also Morgan, 
536 U.S. at 113.20 Here, unlike in Ricks, each round 
of hiring only applicants who scored 89 or above on 
the test constituted a freestanding, present violation 
of Title VII’s disparate-impact prohibition that 
started a new and distinct charge-filing period. See 
supra Part I.C.

B. The creation of an eligibility list is not an 
intervening act that immunizes an illegal 
hiring practice.

The court of appeals also separately suggested 
that the City’s employment practice was in fact three 
practices: the City’s decision to start hiring from only 
those applicants who scored 89 or above (labeled 
“well qualified”), followed by the creation of an eligi­
bility list consisting solely of “well qualified” appli­
cants, followed by hiring in reliance on that eligibil­
ity list. Pet. App. 4a-5a. The court reasoned that 
only the first practice was a violation of Title VII, 
that the second was an “intervening neutral act,” 
and that the third was not a violation of Title VII 
“because ‘well qualified’ is not a racial category, 
though its racial composition may have been influ­
enced by a discriminatory decision taken earlier.” 
Id. at 5a. This approach cannot be reconciled with 
Title VII’s text or this Court’s decisions.

The court of appeals’ reasoning ignores the plain 
meaning of § 703(k) and § 703(h). Under that plain 
meaning, it is evident that when the City selected

20 In addition, the court of appeals’ analysis is inconsistent 
with the premise that a facially discriminatory practice can be 
challenged at any time. See Ledbetter, 550 U.S. at 634; see also 
supra p.37 n.18.



41

applicants on the eligibility list—-that is, applicants 
who scored 89 or above—it necessarily used the 
results of the test and cut-off score in a manner that 
caused an unlawful disparate impact. Courts, in­
cluding this Court, routinely refer to the “use” of a 
test to make employment decisions—even in circum­
stances where the employer sorts the results of the 
test and creates an eligibility list for administrative 
purposes. See, e.g., Guardians Ass’n, 463 U.S. at 
585-86 & n.5 (characterizing written examinations 
as being “used to make entry-level appointments,” 
even though the appointments were in practice 
based on a ranked list generated from the exam 
results).21

The court of appeals’ approach would lead to ab­
surd results. An employer could avoid liability under 
Title VII for later uses of an unlawful employment 
practice simply by sorting the results of the practice 
and creating an eligibility list more than 300 days 
prior to using the practice to hire. Title VII liability 
would then turn on whether an employer had taken 
the intervening step of creating a list before making 
hiring decisions—indeed, it could turn on arbitrary 
distinctions as to whether a particular manner of 
processing test results sufficiently transformed those

21 See also, e.g., Adams v. City of Chicago, 469 F.3d 609, 
610-11 (7th Cir. 2006) (describing an “examination used to 
promote officers,” even though the examination was utilized to 
generate a ranked promotional list, which was then used to 
make promotions); Guardians, 633 F.2d at 249 (holding that 
test results “were in effect being ‘used to discriminate’ . . . each 
time a member of the plaintiff class was denied a chance to fill 
a vacancy,” even though the test results had first been compiled 
into lists (quoting 42 U.S.C. § 2000e-2(h))).



42

results into a “list.” Cf. Watson, 487 U.S. at 990 (“If 
we announced a rule that allowed employers so eas­
ily to insulate themselves from liability under 
Griggs, disparate impact analysis might effectively 
be abolished.”).22

In an analogous context, this Court addressed a 
university admissions process that first converted raw 
applicant data into a “selection index” and then made 
decisions based on that index. See Gratz v. Bollinger, 
539 U.S. 244, 255 (2003). In the university’s system, 
each applicant could receive up to a maximum of 150 
points based on a host of factors, including 20 points 
based on membership in an underrepresented racial 
group. Id. Notwithstanding the university’s prior 
creation of a selection index, the Court held that the 
university’s admissions decisions constituted an 
impermissible “use of race.” Id. at 275.

Attaching legal significance to the mere creation 
of an eligibility list, in between setting a cut-off score 
and relying on it for actual hiring decisions, also 
could result in a largely prospective charging pe­
riod—one that might expire before the results of a 
test are used in hiring at all. Applied in this case, it 
would mean that challenges to the vast majority of

22 Moreover, if the court of appeals’ analysis were extended 
to other federal statutes, any law forbidding the use of particu­
lar information could be evaded by first compiling the informa­
tion into a list. For instance, an investment brokerage firm 
could obtain insider information and put that information onto 
a list of securities to be sold. Under the court of appeals’ ap­
proach, the firm would be entitled to argue that it did not use 
the insider information, only the neutral list, when it sold the 
securities. See 15 U.S.C. § 78p(b) (preventing the “unfair use” 
of insider information).



43

the City’s illegal hires were time-barred before any 
hiring took place. The Court should not read a stat­
ute to require such odd results unless the text ex­
pressly requires it, which in this instance it does not. 
See Chandler v. Roudebush, 425 U.S. 840, 848 (1976) 
(“[T]he plain, obvious and rational meaning of a 
statute is always to be preferred to any curious, 
narrow, hidden sense that nothing but the exigency 
of a hard case and the ingenuity and study of an 
acute and powerful intellect would discover.” (quot­
ing Lynch v. Alworth-Stephens Co., 267 U.S. 364, 370 
(1925))).

Even if the City’s repeated hiring decisions based 
on the results of the 1995 test were “neutral” acts, that 
characterization would not avoid liability. Title VII’s 
disparate-impact prohibition was enacted specifically 
to address “practices, procedures, or tests neutral on 
their face, and even neutral in terms of intent.” 
Griggs, 401 U.S. at 430; see also Dothard, 433 U.S. at 
329 (“[A] plaintiff need only show that the facially 
neutral standards in question select applicants for 
hire in a significantly discriminatory pattern.”).23

23 The court of appeals’ opinion might also be read to sug­
gest that the charge-filing period runs from the adoption and 
announcement of an employment practice. Pet. App. 4a, 6a. But 
it is untenable to hold that only the adoption and announcement 
of a policy can be a disparate-impact violation. In many circum­
stances, an employer’s adoption and announcement of a hiring 
practice—without more—only amounts to a declaration of its 
intention to use that practice at some future date. Cf. Am. To­
bacco, 456 U.S. at 69-70 (explaining that “ [t]he adoption of a 
seniority system which has not been applied would not give rise 
to a cause of action. A discriminatory effect would arise only 
when the system is put into operation and the employer ‘ap­
plies’ the system.”).



44

IV. An accrual rule that follows the statutory 
text achieves the purposes of Title VII.

The result in this case is controlled by the plain 
language of Title VII. In such cases, the Court’s 
duty is to execute the statute as written, not to 
ground its decision on policies that are not based in 
the text. See Am. Tobacco, 456 U.S. at 75. In fact, 
however, this is a case where the proper result “finds 
support not only in the text of the statute but also in 
the basic policies underlying the statutory scheme.” 
Pfaffv. Wells Elecs., Inc., 525 U.S. 55, 68 (1998).

A. Clear rules promote certainty.
A “basic polic[y]” of any limitations provision is 

the promotion of “certainty about a plaintiffs oppor­
tunity for recovery and a defendant’s potential li­
abilities.” Rotella v. Wood, 528 U.S. 549, 555 (2000). 
In the Title VII context, this policy requires clear, 
easily applied rules for determining when claims 
accrue.

Under the correct rule for disparate-impact 
claims, which is based on the statutory text of 
§ 703(k) as discussed in Part I supra, a claim accrues 
when an employer uses a practice that disparately 
and unjustifiably impacts employment opportunities 
for employees or job applicants. 42 U.S.C. § 2000e- 
2(k) (1) (A) (i). At that time, all elements of a Title VII 
disparate-impact violation are present. This rule is 
predictable in application and will promote certainty 
for plaintiffs and employers alike. By contrast, the 
court of appeals’ approach does not provide certainty 
for any party in determining when a disparate- 
impact claim accrues. An inquiry that would depend 
on whether a particular use of a practice was the



45

“automatic consequence” of an earlier act, Pet. App. 
4a, would promote litigation about causation that is 
best avoided.24

B. A text-based approach balances the in­
terests of employees and employers.

An accrual and charge-filing rule that respects 
the statutory text of Title VII’s disparate-impact 
prohibition also properly “balances the interests of 
aggrieved employees against the interest in encour­
aging the ‘prompt processing of all charges of em­
ployment discrimination,’ and the interest in re­
pose.” Ledbetter, 550 U.S. at 642 (quoting Mohasco 
Corp. v. Silver, 447 U.S. 807, 825 (1980)).

1. The accrual rule required by the text of 
§ 703(k) fulfills Congress’s intent by assuring that 
victims of discrimination are not denied redress 
simply because they do not file an EEOC charge 
when an unlawful practice is first announced or 
used. See Gunther, 452 U.S. at 178 (emphasizing the 
need to “avoid interpretations of Title VII that de­
prive victims of discrimination of a remedy, without 
clear congressional mandate”); cf. Fed. Express Corp. 
v. Holowecki, 128 S. Ct. 1147, 1158 (2008) (“Title VII 
. . . sets up a ‘remedial scheme in which laypersons, 
rather than lawyers, are expected to initiate the

24 For example, an employer may change some aspects of 
the practice after its original announcement, leading to dis­
putes over whether a particular use is the “automatic conse­
quence” of the original practice. Indeed, in this case, there was 
a mid-course change in the City’s hiring practice. After the 
City exhausted the pool of applicants with scores of 89 or above, 
it decided to continue to use the 1995 test results to fill fire­
fighter candidate classes by selecting from among applicants 
who scored between 65 and 88. Pet. App. 16a; BIO 4 n.l.



46

process.’” (quoting EEOC v. Commercial Office 
Prods. Co., 486 U.S. 107, 124 (1988))).

By contrast, the court of appeals’ rule will gener­
ally start the only charge-filing period for a dispa­
rate-impact challenge running upon the initial an­
nouncement of the employment practice at issue. 
Yet until the practice is actually used to make em­
ployment decisions, affected employees or applicants 
will have limited incentive to institute a legal con­
frontation with an employer by filing EEOC charges.

An employer could take advantage of this reality 
by adopting and announcing a practice with a fore­
seeable disparate impact, but delaying its implemen­
tation until 300 days after its promulgation; if no one 
files an EEOC charge during the intervening period, 
the court of appeals’ rule would provide license for 
the employer to continue using the practice indefi­
nitely. Indeed, an employer could be better off leav­
ing in place a potentially discriminatory test rather 
than developing a new one and thus opening itself to 
new allegations of discrimination. The court of ap­
peals’ rule would thus deter employers from volun­
tarily complying with Title VII, contrary to congres­
sional intent. See Ricci, 129 S. Ct. at 2674 (recogniz­
ing “Congress’s intent that Voluntary compliance’ be 
‘the preferred means of achieving the objectives of 
Title VII”’ (quoting Local No. 93, Int’l Ass’n of Fire­
fighters v. City of Cleveland, 478 U.S. 501, 515 
(1986))).

2. The court of appeals suggested that its hold­
ing might be necessary to avoid allowing plaintiffs to 
initiate suit challenging an examination “ten years” 
after they received notification of their scores. Pet.



47

App. 9a. This overstates the risk of delay. Employ­
ees and job applicants have every incentive to file 
promptly once they are concretely affected by an 
employer’s unlawful practice.

An aggrieved employee or applicant presumably 
needs the employment opportunity that has been 
denied. That need encourages prompt assertion of 
the claim. In addition, delay in instituting EEOC 
proceedings affects the scope of the remedy. Back­
pay, for example, is allowed only for the two years 
immediately prior to the filing of a charge. 42 U.S.C. 
§ 2000e-5(g)(l). And the passage of time can make it 
more difficult to hire or reinstate a successful Title 
VII plaintiff into the position that he or she was 
denied. See Lindemann & Grossman, 2 Employment 
Discrimination Law 2721-22 & nn.73-78.

3. The accrual rule required by § 703(k) also re­
spects employers’ legitimate interest in repose. Title 
VII’s charge-filing deadlines are motivated in part by 
concerns that an employer’s ability to defend itself 
may be impaired due to fading memories or the un­
availability of evidence. In Ledbetter, the Court 
noted that “concerns regarding stale claims weigh 
more heavily with respect to proof of the intent asso­
ciated with employment practices than with the 
practices themselves” because “evidence relating to 
intent may fade quickly with time.” 550 U.S. at 631.

These concerns have little force in Title VII dis­
parate-impact cases because the employer’s subjec­
tive intent is not an element of the cause of action. 
42 U.S.C. § 2000e-2(k)(l)(A), (C); Griggs, 401 U.S. at 
432. Rather, liability typically turns not on the tes­
timony of fact witnesses but on objective evidence



48

and expert testimony regarding disparate impact, 
test validation, business necessity, and less- 
discriminatory alternatives. See 42 U.S.C. § 2000e- 
2(k)(l)(A), (C). Such evidence is unlikely to erode 
over time. And the EEOC’s Uniform Guidelines on 
Employee Selection Procedures already require em­
ployers to maintain records documenting impact and 
validity evidence for a practice that has a racially 
disparate impact. 29 C.F.R. §§ 1607.5(D), 1607.15.

Moreover, employers have no legitimate interest 
in repose from challenges to repeated Title VII viola­
tions caused by their multiple uses of the same prac­
tice, simply because the first such violation was not 
challenged. A freestanding Title VII violation that is 
related to an earlier violation may be made the sub­
ject of a timely charge even if the earlier violation 
was not. See supra Part I.C; Ledbetter, 550 U.S. at 
636; Morgan, 536 U.S. at 113. In short, an employer 
that uses a non-job-related selection practice, as the 
City did here, is the master of its own repose—it can 
end its exposure to suit by ceasing use of the dis­
criminatory practice.

C. The court of appeals’ alternative encour­
ages unnecessary charge-filing.

Any consideration of the costs of delayed EEOC 
charges challenging practices on disparate-impact 
grounds must consider the opposite side of the coin: 
the costs of encouraging plaintiffs to file premature 
and unnecessary charges.

Under the court of appeals’ rule, any time an em­
ployer adopts a practice that has a disparate impact 
against a protected group, the only prudent course of 
action is for affected individuals to file an immediate



49

EEOC charge, even if they have not yet suffered any 
practical harm, and even if they lack information as 
to whether the practice might be job-related. In the 
present case, for example, when the City first an­
nounced its hiring practice and admitted to its dis­
parate impact, petitioners had insufficient facts to 
contest the City’s assertion that the test was “fair.” 
Pet. App. 48a-49a; JA 54, 74-75, 77.

Thus, the court of appeals’ approach provides an 
undesirable incentive to file EEOC charges based 
only on “raw racial statistics,” notwithstanding this 
Court’s recent discouragement of such a course of 
action. Ricci, 129 S. Ct. at 2681. Employees or job 
applicants should not be compelled as a matter of 
law to initiate legal confrontations with an employer 
before they can determine the actual consequences of 
the practice for them.

Nor should this Court embrace an accrual rule 
that encourages the filing of charges that may prove 
unnecessary. In this case, the court of appeals held 
that the only charge-filing period began to run upon 
announcement of an employment practice that had 
an unjustified disparate impact. But there could 
well have been no practical injury if shortly after the 
City scored the test and announced its planned hir­
ing practice, it had decided to cancel or to indefi­
nitely delay the hiring of new employees for financial 
or other reasons.25 Judicial and administrative

26 In recent months, many cities and states have faced fi­
nancial difficulties that have compelled hiring freezes or lay­
offs. See, e.g., Gregory Beyer, The Barred Door, N.Y. Times, 
Feb. 13, 2009, at CY1 (detailing the New York Fire Depart­
ment’s announcement that it would indefinitely defer entry- 
level firefighter hiring).



50

economy are not well served by a rule that requires 
employees to initiate litigation upon the adoption or 
announcement of practices that may never be ap­
plied to cause them practical harm.

CONCLUSION
For the foregoing reasons, the judgment of the 

court of appeals should be reversed.

Respectfully submitted,

J o h n  Pa y t o n  
Counsel of Record 

D ebo  P. A d e g b ile  
M a t t h e w  Co la n g e lo  
J o y  M ill ig a n  
R y a n  C. D o w n e r  
NAACP L e g a l  D e fe n se  & 

Ed u c a tio n a l  Fu n d , In c .
99 Hudson St., 16th Floor 
New York, NY 10013 
(212) 965-2200

J o s h u a  C ivin  
NAACP L e g a l  D e fen se  & 

Ed u c a tio n a l  F u n d , In c . 
1444 I St., NW, 10th Floor 
Washington, DC 20005

Clyd e  E. M u r ph y  
Ch ica g o  La w y e r s ’ 
C o m m itte e  fo r  C ivil  
R ig h ts  U n d e r  La w , In c .

100 N. LaSalle St.
Chicago, IL 60602



51

J u d s o n  H. M in e r  
G e o r g e  F. Ga l l a n d , J r . 
M in e r , Ba r n h il l  & 

G a l l a n d , P.C.
14 W. Erie St.
Chicago, IL 60610

M a t t h e w  J. P iers  
J o s h u a  Ka r s h  
H u g h e s , So c o l , P ie r s , 
R e s n ic k  & D y m  L t d .

70 W. Madison St.
Chicago, IL 60602

Pa t r ic k  O. Pa t t e r s o n , Jr . 
La w  O ffic e  of Pa t r ic k  O. 

Pa t t e r s o n , S.C.
7841 N. Beach Dr.
Fox Point, WI 53217

Fa y  Cla y t o n  
Cy n t h ia  H. H y n d m a n  
R o b in s o n , Cu r l e y  & 

Cl a y t o n , P.C.
300 S. Wacker Dr.
Chicago, IL 60606

B r id g e t  A r im o n d  
357 E. Chicago Ave. 
Chicago, IL 60611

N o v e m b e r  23, 2009