Lewis Jr. v. City of Chicago Brief for the United States as Amicus Curiae

    No. 08-974

3n tf)t Supreme Court of tt)t Umteb States;

A r t h u r  L . L e w i s , J r ., e t  a l ., p e t i t i o n e r s

v.
C i t y  o f  C h i c a g o , I l l i n o i s

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

James L. Lee 
Deputy General Counsel

Lorraine C. Davis 
Assistant General Counsel

Anne Noel Occhialino
Attorney
Equal Employment

Opportunity Commission 
Washington, D.C. 20507

Elena Kagan 
Solicitor General 

Counsel of Record 
Loretta King 

Acting Assistant Attorney 
General

Neal Kumar Katyal 
Deputy Solicitor General

Leondra R. Kruger 
Assistant to the Solicitor 

General
Dennis J. Dimsey 
Teresa Kwong 

Attorneys
Department of Justice 
Washington, D.C. 20530-0001 
(202) 51.)-2217



QUESTION PRESENTED

Whether a plaintiff may bring an action under Title 
VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e 
et seq., alleging that an employer’s use of an employment 
examination has an unlawful disparate racial impact, 
when the employer uses the results of the examination 
to hire employees during the statutory limitations pe­
riod, but scores the examination and announces the re­
sults outside the limitations period.

(I)





TABLE OF CONTENTS
Page

Statement............................................................................1
Discussion............................................................................6

A. The court of appeals erred in holding that peti­
tioners’ charges were untimely.................................. 7

B. The courts of appeals are divided on the question
presented ................................................................16

C. The question presented warrants this Court’s
review .....................................................................19

Conclusion ............................................   20

TABLE OF AUTHORITIES

Cases:

Anderson v. Zubieta, 180 F.3d 329 (D.C. Cir. 1999).......  17
AT&T Corp. v. Hulteen, 129 S. Ct. 1962 (2009).............. 11
Beavers v. American Cast Iron Pipe Co., 975 F.2d 792

(11th Cir. 1992) .................................................. 17,18
Bouman v. Block, 940 F.2d 1211 (9th Cir.),

cert, denied, 502 U.S. 1005 (1991)........................  16,17
Bronze Shields, Inc. v. New Jersey Dep’t of Civil 

Serv., 667 F.2d 1074 (3d Cir. 1981), cert, denied,
458 U.S. 1122 (1982) ................................................  18

Cox v. City of Memphis, 230 F.3d 199 (6th Cir.
2000) .................................................................. 18,19

Delaware State Coll. v. Ricks, 449 U.S. 250
(1980)......................................................... 4, 5, 8, 9,19

Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d
241 (5th Cir. 1980).................................................. 16

Griggs v. Duke Power Co., 401 U.S. 424 (1971).............. 1

(H I )



IV

Cases—Continued: Page

Guardians Ass’n. of the New York City Police Dep’t v.
Civil Serv. Comm’n, 633 F.2d 232 (2d Cir. 1980),
aff’d, 463 U.S. 582 (1983).........................................  16

International Bhd. of Teamsters v. United States,
431 U.S. 324 (1977) .................................. . 1 ,12

Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S.
618 (2007).............................................  8,10,11,12,15

Lorance v. AT&T Techs., Inc., 490 U.S. 900 (1989).. 8, 9,10
Ricci v. DeStefano, 129 S. Ct. 2658 (2009) ...................... 1
United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977) .. 9,19

Statutes and regulations:

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e
et seq. ..................    passim

42 U.S.C. 2000e-2(a).......,......................................1
42 U.S.C. 2000e-2(a)(2) ................................7, 8,12
42 U.S.C. 2000e-2(h)............................................. 7
42 U.S.C. 2000e-2(k)(l)(A) ...............................8,12
42 U.S.C. 2000e-2(k)(l)(A)(i) ............................ 5, 7
42 U.S.C. 2000e-2(k)(l)(A)(ii).................................. 6
42 U.S.C. 2000e-5(e)(l) ........................ 2, 7, 8,10,13
42 U.S.C. 2000e-5(e)(2) ........   10

Lilly Ledbetter Fair Pay Act of 2009, Pub. L.
No. 111-2, § 3,123 Stat. 5 ......................................... 11

29 C.F.R.:
Section 1607.5(D) ...........................................  15
Section 1607.15 ........................   15



3u tf)e Supreme Court of ttje dnitcO States

No. 08-974
A r t h u r  L . L e w i s , J r ., e t  a l ., p e t i t i o n e r s

v.
C it y  o f  C h i c a g o , I l l i n o i s

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to this Court’s 
invitation to the Solicitor General to express the views 
of the United States. In the view of the United States, 
the petition for a writ of certiorari should be granted.

STATEMENT

1. Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
2000e et seq., prohibits employment discrimination on 
the basis of race, color, religion, sex, or national ori­
gin. 42 U.S.C. 2000e-2(a). The statute proscribes both 
disparate-treatment discrimination and disparate-im­
pact discrimination. See Griggs v. Duke Power Co., 401 
U.S. 424, 431 (1971) (“The Act proscribes not only overt 
discrimination but also practices that are fair in form, 
but discriminatory in operation.”); see also Ricci v. 
DeStefano, 129 S. Ct. 2658, 2672-2673 (2009).

(1)



2

To file suit under Title VII, a plaintiff must first file 
a timely charge with the Equal Employment Opportu­
nity Commission (EEOC). A charge is generally timely 
if it is filed within 180 days “after the alleged unlawful 
employment practice occurred.” 42 U.S.C. 2000e-5(e)(l). 
But in States that have an administrative agency with 
authority to remedy practices prohibited by Title VII, a 
plaintiff who initially proceeds before that agency must 
file a charge with the EEOC within 300 days “after 
the alleged unlawful employment practice occurred” or 
within 30 days of receiving notification that the state 
agency proceedings have been terminated, whichever 
is earlier. Ibid. Because the events at issue in this case 
took place in Illinois, which has such an administrative 
agency, the applicable limitations period under Section 
2000e-5(e)(l) is 300 days.

2. In July 1995, respondent administered a written 
examination to more than 26,000 applicants as part of its 
hiring process for entry-level firefighters. After scoring 
the test, respondent grouped the scores into three cate­
gories: applicants who scored 89 or above were deemed 
“well qualified,” applicants who scored between 65 and 
88 were “qualified,” and the remaining applicants failed 
the examination. Pet. App. la-2a, 45a.

In January 1996, respondent notified all applicants 
in writing of their test scores. The “well qualified” ap­
plicants “would be eligible to proceed to the next phase 
of the hiring process, a physical abilities test,” followed 
by a background investigation, medical examination, and 
drug test. Pet. App. 14a-15a. An applicant who passed 
all of those “preliminary tests” would be “hired as a can­
didate firefighter.” Id. at 15a. Applicants who failed the 
examination were told that they would no longer be con­



3

sidered for employment. The notice for applicants in the 
“qualified” class stated:

Due to the large number of candidates who received 
higher scores and were rated as “Well Qualified,” 
and based on the operational needs of the Chicago 
Fire Department, it 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 maintained by the De­
partment of Personnel for as long as that list is used.

Id, at 46a (citation omitted); see id. at 2a, 46a-47a.
On January 26,1996, the mayor issued a press release 

concerning the test results. The release stated that 1782 
of the applicants who took the written examination were 
considered “well qualified” and would be contacted in 
random order to continue in the hiring process. Pet. 
App. 47a. The release further stated that, of those in the 
“well qualified” group, 75.8% were white, 24.2% were 
members of a minority group, and 11.5% were African- 
American. Ibid, By contrast, white applicants repre­
sented 45% of all applicants, while African Americans 
represented 37%. Id. at 15a. Finally, the release stated 
that the mayor was dissatisfied with the lack of diversity 
among the “well qualified” applicants. Id. at 47a. Local 
media subsequently reported the racial breakdown of the 
test results and the mayor’s reaction to the scores. Id. at 
48a.

In May 1996, respondent hired applicants from the 
“well qualified” group. It did so for a second time in 
October 1996, and ultimately engaged in a total of ten 
rounds of hiring from that group. Pet. App. 49a, 68a; 
Pet. 6; Br. in Opp. 4; Pis.’ Mem. in Opp. to Def.’s Mot. to



4

Stay Enforcement of Judgments, Exh. A, at 4 (May 17, 
2007). In 2001, when the list of “well qualified” appli­
cants was exhausted, respondent began calling appli­
cants from the “qualified” group for further processing 
for hire. Pet. App. 16a.

3. Petitioners represent a class of African-American 
firefighter applicants who were placed in the “qualified” 
category based on their scores on the July 1995 exami­
nation. Pet. App. la-2a. On March 31,1997, petitioner 
Crawford M. Smith filed a charge of racial discrimina­
tion with the EEOC based on respondent’s use of the 
July 1995 examination; other petitioners subsequently 
filed additional charges. Id, at 49a; Aff. of Daniel P. 
Broadhurst, Exh. 3 (Feb. 4, 2000). Smith’s charge was 
filed within 300 days of respondent’s calling “well quali­
fied” applicants to be further processed for hire, but 
more than 300 days after respondent administered the 
examination, scored the results, and notified the appli­
cants. Pet. App. 3a, 49a. The EEOC issued right to sue 
letters on July 28, 1998. Id. at 49a. On September 9, 
1998, petitioners filed suit in the United States District 
Court for the Northern District of Illinois, alleging that 
respondent’s use of the July 1995 test had an unlawful 
disparate impact on African-American candidates, in 
violation of Title VII. Ibid.] see id. at 2a.

Respondent moved for summary judgment, arguing 
that petitioners’ suit was time-barred because petition­
ers’ first EEOC charge was filed more than 300 days 
after petitioners were notified of the results of the July 
1995 examination. Pet. App. 52a. The district court de­
nied the motion. Id. at 44a-70a. The court distinguished 
this case from Delaware State College v. Ricks, 449 U.S. 
250 (1980), in which this Court held that allegations 
of intentional national origin discrimination were un­



timely where the alleged discriminatory act—the denial 
of tenure—occurred outside the limitations period, even 
though the plaintiff would later feel the effects of that 
act when his employment was terminated. Pet. App. 
54a-55a (citing Ricks, 449 U.S. at 257-258). In this case, 
the district court noted, petitioners “allegefd] that the 
1995 examination had a disparate impact on African- 
American firefighter candidates, and that [respondent’s] 
reliance on the examination’s results continues to have 
a disparate impact on African-American candidates.” 
Id. at 60a. The court concluded that, “if [petitioners] 
establish that the 1995 written examination used in [re­
spondent’s] firefighter selection process had an unlawful 
disparate impact on African-American candidates, then 
[respondent’s] ongoing reliance on those results consti­
tutes a continuing violation of Title VII.” Id. at 69a.

After an eight-day bench trial, the district court 
ruled that respondent’s use of the July 1995 examination 
violated the disparate-impact provisions of Title VII. 
Pet. App. 12a-43a. The parties had stipulated that 
the July 1995 test “had a severe disparate impact 
on African-American firefighter candidates.” Id, at 28a. 
The court found that respondent had failed to dis­
charge its statutory burden of showing that its use of 
the test was “job related for the position in question” 
and “consistent with business necessity,” 42 U.S.C. 
2000e-2(k)(l)(A)(i). Pet. App. 28a-42a. Specifically, the 
court found that the test “was skewed towards one of the 
least important aspects of the firefighter position at the 
expense of more important abilities,” id, at 32a; that 
“the cut-off score of 89 is statistically meaningless 
in that it fails to distinguish between candidates based 
on their relative abilities,” id. at 30a; and that respon­
dent “failed to prove that test results could be used



6

to predict firefighter performance,” ibicl. See id. at 28a- 
41a. The court further found that “the evidence clearly 
shows that an equally valid and less discriminatory al­
ternative was available.” Id. at 41a (citing 42 U.S.C. 
2000e-2(k)(l)(A)(ii)). The court entered judgment in 
favor of petitioners and ordered injunctive relief. Id. at 
2a.

4. On appeal, respondent did not challenge the dis­
trict court’s finding that its use of the July 1995 exami­
nation violated Title VII’s disparate-impact provisions. 
Instead, it challenged only the district court’s hold­
ing that petitioners had timely filed a charge with the 
EEOC. Resp. C.A. Br. 16-47. Agreeing with respon­
dent, the court of appeals reversed. Pet, App. la -lla .

The court of appeals concluded that the discrimina­
tion at issue in this case “was complete when the tests 
were scored and, especially in light of the mayor’s public 
comment about them, was discovered when the appli­
cants learned the results.” Pet. App. 4a. Analogizing 
this case to Ricks, the court further concluded that 
“ [t]he hiring only of applicants classified ‘well qualified’ 
was the automatic consequence of the test scores rather 
than the product of a fresh act of discrimination.” Ibid, 
Accordingly, the court held that petitioners’ claim ac­
crued in January 1996, when respondent placed petition­
ers in the “qualified” category and “delayed indefinitely 
their being hired.” Id. at 9a. Because petitioners had 
not filed a charge within 300 days of that date, the court 
of appeals instructed the district court to enter judg­
ment for respondent. Id, at 11a.

DISCUSSION

The court of appeals in this case erred in concluding 
that a claim of disparate-impact discrimination based on



7

an employer’s use of an invalid employment examination 
accrues only when the examination is scored and the re­
sults announced, and not when the employer later uses 
those results to hire or promote job applicants in a man­
ner that adversely affects members of a protected 
group. The court’s holding is inconsistent with the text 
of Title VII, unsupported by this Court’s precedents, 
and in conflict with the decisions of other courts of ap­
peals. This Court’s review is warranted.

A. The Coux t Of Appeals Erred In Holding That Petitioners’ 
Charges Were Untimely

1. Under Title VII, petitioners were required to 
file a charge with the EEOC within 300 days “after 
the alleged unlawful employment practice occurred.” 
42 U.S.C. 2000e-5(e)(l); see p. 2, supra. Title VII makes 
it unlawful for an employer “to limit, segregate, or clas­
sify his employees or applicants for employment in any 
way which would deprive or tend to deprive any individ­
ual of employment opportunities or otherwise adverse­
ly affect his status as an employee, because of such indi­
vidual’s race.” 42 U.S.C. 2000e-2(a)(2). Title VII fur­
ther provides that “ [a]n unlawful employment prac­
tice based on disparate impact is established” if, among 
other things, “a complaining party demonstrates that 
a respondent uses a particular employment practice 
that causes a disparate impact on the basis of race.” 
42 U.S.C. 2000e-2(k)(l)(A)(i) (emphasis added); cf. 
42 U.S.C. 2000e-2(h) (“ [I]t shall not be an unlawful em­
ployment practice for an employer * * * to give and to 
act upon the results of any professionally developed abil­
ity test provided that such test, its administration or 
action upon the results is not designed, intended, or



used to discriminate because of race, color, religion, sex, 
or national origin.”) (emphasis added).

Petitioners argued, and the district court found, that 
respondent violated Title VII by hiring entry-level fire­
fighters based on the results of an employment examina­
tion that had an unlawful disparate impact on qualified 
African-American candidates. Pet. App. 28a-42a. In 
so doing, respondent “use[d]” an unlawful selection de­
vice, 42 U.S.C. 2000e-2(k)(l)(A), in a manner that “de- 
prive[d]” qualified African-American applicants of “em­
ployment opportunities,” 42 U.S.C. 2000e-2(a)(2). When 
respondent hired firefighter candidates from the list of 
applicants deemed “well qualified” based on the July 
1995 examination results, it thus engaged in an unlawful 
employment practice that started the 300-day clock un­
der Section 2000e-5(e)(l). Because petitioners filed an 
EEOC charge before that period elapsed, they were 
entitled to proceed in federal court to remedy respon­
dent’s unlawful employment practices.

2. In reaching a contrary conclusion, the court of 
appeals failed to consider the language of Title VII’s 
disparate-impact provisions. The court instead relied on 
a line of cases including Delaware State College v. Ricks, 
449 U.S. 250 (1980), Lorance v. AT&T Technologies, 
Inc., 490 U.S. 900 (1989), and Ledbetter v. Goodyear Tire 
& Rubber Co., 550 U.S. 618 (2007), which held that, to 
sustain a claim of intentional discrimination, a plaintiff 
must identify an act of intentional discrimination occur­
ring within the statutory limitations period, and may not 
simply point to the effects of a past, discrete act of inten­
tional discrimination. The court below erred in relying 
on that line of disparate-treatment cases to evaluate peti­
tioners’ disparate-impact claim, and failing to recognize



9

that that claim described a violation of Title VII within 
the statutory limitations period.

a. In Ricks, the plaintiff, a college professor, claimed 
that his employer intentionally discriminated against 
him on the basis of national origin when it denied 
him tenure and instead offered him a one-year “termi­
nal” contract. 449 U.S. at 252-253. The plaintiff filed a 
charge with the EEOC shortly before the contract ex­
pired. Id. at 254. The Court held that the limitations 
period began to run when the tenure decision had been 
made and communicated to the plaintiff, “even though 
one of the effects of the denial of tenure—the eventual 
loss of a teaching position—did not occur until later.” 
Id. at 258. The Court explained that the “emphasis is 
not upon the effects of earlier employment decisions; 
rather, it is [upon] whether any present violation ex­
ists.” Ibid, (brackets in original) (quoting United Air 
Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977)). Because 
the only claimed violation concerned the denial of ten­
ure, and the plaintiff had not identified any “discrimina­
tory acts that continued until, or occurred at the time of, 
the actual termination of his employment,” the Court 
concluded that the plaintiffs EEOC charge was untime­
ly. Id. at 257-258.

Similarly, in Lorance, the plaintiffs alleged that a 
contractual modification in the seniority system for test­
ers at an electronics plant was the product of intentional 
sex discrimination, but did not file an EEOC charge un­
til years later, when they were selected for demotion un­
der the new seniority system. 490 U.S. at 901-902. The 
Court held that the charge was filed too late. It noted 
that, if the “claim asserted [were] one of discriminatory 
impact under § 703(a)(2),” the “statute of limitations 
[would] run from the time that impact is felt.” Id. at



10

908. But because the claim asserted was instead one of 
intentional discrimination, and “ [bjecause the claimed 
invalidity of the facially nondiscriminatory and neutrally 
applied tester seniority system is wholly dependent on 
the alleged illegality of signing the underlying agree­
ment,” the Court concluded that “it is the date of that 
signing which governs the limitations period.” Id. at 
911.1

Finally, in Ledbetter, the Court concluded that the 
plaintiffs claim of intentional pay discrimination was 
time-barred because the alleged discrimination occurred 
outside the statutory limitations period, rejecting the 
plaintiffs argument that the discrimination had been 
carried forward in the form of reduced pay and the de­
nial of a raise. 550 U.S. at 624. The Court emphasized 
that the petitioner “ma[de] no claim that intentionally 
discriminatory conduct occurred during the charging 
period.” Id. at 628; accord id. at 624. The Court con­
cluded that accepting the petitioner’s argument that an 
“unlawful employment practice” nevertheless occurred 
during the limitations period, as Section 2000e-5(e)(l) 
requires, would “require us in effect to jettison the de­
fining element of the legal claim on which her Title VII

1 In response to Lorance, Congress amended Title VII to provide 
that an “unlawful employment practice occurs, with respect to a sen­
iority system that has been adopted for an intentionally discriminatory 
purpose * * * when the seniority system is adopted, when an indi­
vidual becomes subject to the seniority system, or when a person ag­
grieved is injured by the application of the seniority system or provision 
of the system.” 42 U.S.C. 2000e-5(e)(2); see Ledbetter, 550 U.S. at 627 
n.2.



11

recovery was based”—namely, “discriminatory intent.” 
Ibidr

b. Specifically analogizing this case to Ricks, the 
court of appeals held that petitioners’ EEOC charge 
was untimely because respondent’s discrimination “was 
complete when the tests were scored” and petitioners 
were informed that it was “not likely” that they would be 
hired. Pet. App. 4a, 46a. In the court’s view, respon­
dent’s subsequent hiring practices were merely the “au­
tomatic consequence” of the earlier testing, rather than 
a “fresh act of discrimination.” Id. at 6a,

But the Ricks-Lorance-Ledbetter line of cases does 
not stand for the broad proposition that any employment 
practice following from an earlier act of discrimination 
is not actionable under Title VII. As the Court made 
clear in Ledbetter, “a freestanding violation may always 
be charged within its own charging period regardless of 
its connection to other violations.” 550 U.S. at 636. The 
claims in Ricks and other similar cases failed not be­
cause they were in some way connected to earlier viola­
tions, but because the plaintiffs had failed to allege that 
a violation occurred at any point during the limitations 
period; their claims rested on allegations of intentional 
discrimination, but their description of the events occur- 2

2 In response to Ledbetter, Congress amended Title VII to provide 
that an “unlawful employment practice occurs, with respect to discrimi­
nation in compensation in violation of this title, when a discriminatory 
compensation decision or other practice is adopted, when an individual 
becomes subject to a discriminatory compensation decision or other 
practice, or when an individual is affected by application of a discrimina­
tory compensation decision or other practice, including each time wag­
es, benefits, or other compensation is paid, resulting in whole or in part 
from such a decision or other practice.” Lilly Ledbetter Fair Pay Act 
of 2009, Pub. L. No. 111-2, § 3,123 Stat. 5-6; see AT&T Corp. v. Hul- 
teen, 129 S. Ct. 1962,1973 (2009).



12

ring within the limitations period omitted the “defining 
element of [that] legal claim,” namely, “discriminatory 
intent.” Id. at 624.

Unlike in the intentional discrimination claims at is­
sue in those cases, the defining element of a disparate- 
impact claim is the effect of an employment practice on 
members of a protected group, rather than the em­
ployer’s intent in adopting the practice. See Interna­
tional Bhd. o f Teamsters v. United States, 431 U.S. 324, 
335 n.15 (1977) (“Proof of discriminatory motive * * * 
is not required under a disparate-impact theory.”). As 
this Court has acknowledged, that difference necessarily 
affects the evaluation of the timeliness of an EEOC 
charge. While the Court held in Ricks and similar cases 
that “the EEOC charging period ran from the time when 
the discrete act of alleged intentional discrimination 
occurred, not from the date when the effects of this 
practice were felt,” Ledbetter, 550 U.S. at 627, the Court 
has acknowledged that a claim of discriminatory impact, 
in contrast, “caus[es] the statute of limitations to run 
from the time that impact is felt,” Lorance, 490 U.S. at 
908.

In this case, petitioners have described a present 
violation of Title VII’s disparate-impact provisions, re­
lated factually to earlier acts that might have formed 
the basis for a suit but itself constituting a freestand­
ing legal harm. They have argued that respondent 
used a challenged employment practice during the statu­
tory limitations period when respondent employed the 
results of the July 1995 examination to hire a new 
class of firefighters in a manner that adversely affec­
ted petitioners’ employment opportunities because of 
race. See 42 U.S.C. 2000e-2(a)(2) and (k)(l)(A). Their



13

EEOC charge was accordingly timely under Section 
2000e-5(e)(l).

c. The analysis is not altered by respondent’s prac­
tice of preceding hiring decisions by sorting test-takers 
into groups of “qualified” and “well qualified” appli­
cants. See Pet. App. 4a. It is true, as the court of ap­
peals noted, that petitioners were injured when they 
were told that they had been classified as “qualified” ra­
ther than “well qualified” based on the results of the 
July 1995 examination, thereby “delaying] indefinitely 
their being hired.” Id. at 9a. But petitioners were also 
injured when they were in fact passed over because of 
those results. As the district court noted, if an examina­
tion used to sort applicants has an unlawful disparate 
impact, then an employer’s use of the examination’s re­
sults to hire employees “has the same disparate impact.” 
Id. at 60a. An employer who would otherwise be prohib­
ited from using the raw results of an unlawful test is not 
immunized from liability merely because it takes the 
intermediate step of labeling candidates “qualified” or 
“well qualified” based on those test results.

3. Although the court of appeals acknowledged the 
differences between a claim of disparate treatment and 
one of disparate impact, it concluded those differences 
were “not fundamental,” Pet. App. 5a, and therefore 
should not “change the date on which the statute of limi­
tations begins to run,” id. at 6a. The court explained 
that disparate-impact theory “involves the use of cir­
cumstantial evidence to create an inference of discrimi­
nation.” Id. at 5a. It further explained that if a test or 
other selection device proves to have an adverse impact 
on a protected group, and the employer cannot show 
that “the method is a rational method of selecting em­
ployees,” then the employer’s “continuing to use the test



14

suggests that his purpose in doing so may be discrimina­
tory, although that need not be shown.” Id. at 6a.

Even accepting the court of appeals’ view of the con­
nection between disparate-impact and disparate-treat­
ment claims, its conclusion does not follow. An employer 
“continues] to use [a] test” with an unlawful disparate 
impact, Pet. App. 6a, each time it “uses” the results of 
the test to classify applicants and select employees. If 
the employer uses the test on one occasion to select em­
ployees, it will commit one violation; if the employer 
uses the test on subsequent occasions to select employ­
ees, it will commit subsequent violations. The court of 
appeals’ decision identifies no reason why subsequent 
uses of an unlawful selection device are not independ­
ently actionable under Title VII.

4. Finally, the court of appeals suggested (Pet. App. 
9a) that its holding was necessary to avoid the prospect 
that a plaintiff might wait as long as “ten years” before 
filing a Title VII charge based on an employer’s use of 
an examination with an unlawful disparate impact. The 
question in this case, however, is whether a plaintiff may 
wait 300 days (or, in some States, 180 days) after an em­
ployer uses such examination results to select employees 
for hire. That use, once again, constitutes a violation 
of Title VII that sets the clock running, regardless 
how much time has elapsed since the administration of 
the examination. Moreover, as a practical matter, candi­
dates for employment or promotion have little incentive 
to delay unreasonably in filing EEOC charges; such de­
lay would postpone any possibility of attaining the em­
ployment opportunities they claim were unlawfully de­
nied them. And the passage of time in the context of 
disparate-impact cases does not, in any event, raise the 
same concerns that it does in the disparate-treatment



15

context; while delay may make it more difficult to dis­
cern an employer’s discriminatory intent in a disparate- 
treatment case, the pertinent evidence in disparate-im­
pact cases is far less likely to “fade quickly with time.” 
Ledbetter, 550 U.S. at 631; cf. 29 C.F.R. 1607.5(D), 
1607.15 (requiring documentation of impact and validity 
evidence on employment practices with an adverse im­
pact).

On the other hand, the court of appeals’ decision 
could permit an employer to continue indefinitely to 
make employment decisions based on a concededly un­
lawful selection device, provided that no plaintiff has 
filed suit within 180 or 300 days of the announcement of 
the results. The lower court’s decision, moreover, en­
courages—indeed, requires—plaintiffs to file lawsuits 
before they can be sure of the practical consequences of 
an employer’s administration of an unlawful selection 
device—and may poison the workplace with anticipatory 
litigation before facts have crystallized. An employer 
that administers an employment examination may never 
in fact use the results to select employees for hire or 
promotion, or it may decide, as respondent eventually 
did in this very case, to hire from among the ranks of 
those adversely affected by the examination. See Pet. 
App. 9a, 16a. But under the decision below, a rational 
Title VII plaintiff will not wait to evaluate the practical 
consequences of an unlawful employment examination 
before filing. The decision creates incentives that are 
likely to lead to a proliferation of unnecessary litigation.



16

B. The Courts Of Appeals Are Divided On The Question 
Presented

As both the court of appeals (Pet, App. 6a-7a) and 
respondent (Br. in Opp. 22-26) have acknowledged, the 
courts of appeals are divided on the question presented.

1. As all parties agree (Pet. 13-14; Br. in Opp. 24- 
25), the decision below conflicts with the decisions of the 
Second and Fifth Circuits. Both courts have concluded, 
in direct contrast with the court of appeals in this case, 
that a charge based on an employer’s use of an employ­
ment examination with an unlawful disparate impact is 
timely if the employer used the results to make hiring or 
promotion decisions at any point during the limitations 
period. See Guardians A ss’n of the New York City Po­
lice Dep’t v. Civil Serv. Comm’n, 633 F.2d 232, 247-251 
(2d Cir. 1980) (holding that the plaintiffs’ EEOC charge 
was timely because it was filed within 300 days of the 
employer’s last hiring decision based on the results of 
employment tests with a disparate impact on African- 
American and Hispanic candidates), aff’cl on other 
grounds, 463 U.S. 582 (1983); Gonzalez v. Firestone Tire 
& Rubber Co., 610 F.2d 241, 249-250 (5th Cir. 1980) (re­
manding for the district court to consider whether the 
charge was filed within 180 days after the employer’s 
last hiring or promotion decision based on the results of 
the challenged testing system).

The decision below, as the court of appeals in this 
case acknowledged (Pet. App. 6a-7a), also conflicts with 
the Ninth Circuit’s decision in Bouman v. Block, 940 
F.2d 1211, cert, denied, 502 U.S. 1005 (1991). In that 
case, the court held that the plaintiff’s EEOC charge 
was timely because it was filed within 300 days of the 
expiration of an eligibility list based on the results of a 
challenged promotion examination, even though the eli­



17

gibility list had been promulgated outside the limitations 
period.3

Other courts of appeals, including the District of Co­
lumbia and Eleventh Circuits, have applied a similar 
analysis in other contexts; they have concluded that a 
charge that an employment benefit policy has an unlaw­
ful disparate impact is timely if the policy was applied at 
any point during the limitations period. See Anderson 
v. Zubieta, 180 F.3d 329, 335-337 (D.C. Cir. 1999) (con­
cluding that the plaintiffs’ charges were timely, even 
though the plaintiffs were first notified of the challenged 
wage and benefit policies outside the limitations period 
applicable to their promulgation, because plaintiffs had 
adequately alleged that the “continued application” of 
the allegedly discriminatory policies constituted a “pres­
ent violation”); Beavers v. American Cast Iron Pipe Co., 
975 F.2d 792, 796-800 (11th Cir. 1992) (concluding that 
the plaintiffs’ charges were timely, even though the 
plaintiffs first became subject to the challenged policy 
outside the limitations period).4

3 Respondent contends (Br. in Opp. 30-31) that Bouman does not 
“deepen[] the conflict” because the Ninth Circuit in that case errone­
ously distinguished cases like Ricks on the ground that the plaintiff 
could not have been certain she would not be promoted until the eli­
gibility list expired. See Bouman, 940 F.2d at 1221; see Pet. App. 6a- 
7a (criticizing Bouman for confusing the question when the plaintiff’s 
claim accrued with the question whether equitable tolling would be war­
ranted). For present purposes, however, the relevant point is that the 
Ninth Circuit considered the plaintiffs “non-appointment from the eli­
gible list” to be “a separate injury from the allegedly discriminatory ex­
amination itself” or from the posting of the list, Bouman, 940 F.2d at 
1221, and thus reached a result “contrary” to the decision below, Pet. 
App. 6a.

4 The court of appeals attempted to distinguish Beavers on the 
ground that the alleged discriminatory practice there at issue— a health



18

2. On the other hand, the decision below is consis­
tent with Bronze Shields, Inc. v. New Jersey Depart­
ment of Civil Service, 667 F.2d 1074 (1981), cert, denied, 
458 U.S. 1122 (1982), in which the Third Circuit con­
cluded that an EEOC charge that an employment exami­
nation had a disparate impact was untimely because it 
was filed more than 180 days after the employer had 
published an eligibility list based on the results (though 
before the employer ever used the list to make a hiring 
decision). Id. at 1083-1084. It is also consistent with 
Cox v. City of Memphis, 230 F.3d 199 (2000), in which 
the Sixth Circuit held that the plaintiffs’ claim that the 
employer “deliberately set out to discriminate against 
white females in the promotional process,” id. at 201, 
was time-barred because the list of individuals eligible 
for promotion had been promulgated outside the limita­
tions period, id. at 204.5

insurance policy that limited coverage of employees’ children to those 
residing full-time with an employee parent, see Beavers, 975 F.2d at 
784—was the “sole cause” of the denial of the plaintiffs’ insurance 
claims, and “there was no intervening neutral act, as in this case,” Pet. 
App. 5a. But as explained above, pp. 7-13, supra, the hiring of appli­
cants deemed “well qualified” based on the results of the unlawful test 
in this case was not a “neutral act,” but rather an independent violation 
of Title V II’s disparate-impact provisions. In any event, the court of 
appeals itself recognized that the distinction it proposed “is a fine one 
(and it is arguable on which side of it the facts of Beavers fell).” Pet. 
App. 5a.

6 Both Bronze Shields and Cox are, however, distinguishable from 
the instant case. The plaintiffs in Bronze Shields were definitively noti­
fied that they would not be hired when the eligibility list was promul­
gated, 667 F.2d at 1083, whereas the petitioners in this case were in­
formed only that it was “not likely” that “qualified” applicants would be 
selected for further processing, Pet. App. 46a, and respondents did in 
fact ultimately select some “qualified” applicants beginning in 2001, id.



19

3. Contrary to respondent’s suggestion (Br. in Opp. 
22), there is little reason to think that “the circuits are 
likely to align” without this Court’s intervention. Al­
though Gonzalez and Guardians were decided shortly 
before Ricks, both cases were decided well after this 
Court first announced the principle that an EEOC 
charge is not timely unless a “present violation exists,” 
regardless of whether the plaintiff presently feels the 
effects of a past violation. Evans, 431 U.S. at 558 (em­
phasis omitted); see Ricks, 449 U.S. at 257-258 (citing 
Evans). Respondent identifies no relevant change in the 
law that would cause the courts of appeals to reconsider 
their approaches to the question presented here.

C. The Question Presented Warrants This Court’s Review

The question presented in this case is important and 
recurring. As petitioners correctly note, the use of em­
ployment tests similar to the examination at issue in this 
case is “widespread.” Pet. 19. The conflict among the 
circuits creates uncertainty about when, and under what 
circumstances, a plaintiff may challenge such a test un­
der Title YII’s disparate-impact provisions, and under­
mines the uniform application of federal employment 
discrimination law.

Moreover, if left unreviewed, the court of appeals’ 
decision could undermine enforcement of Title VIPs 
disparate-impact provisions as they apply to such em­
ployment tests, as well as to other employment practices 
that have an unlawful adverse impact on members of 
protected groups. The decision below could also, as no­
ted above, see p. 15, supra, create incentives for plain-

at 16a. And in Cox, unlike this case, the plaintiffs alleged “deliberate!]” 
discrimination in the promotions process. 230 F.3d at 201.



20

tiffs to file premature charges, imposing substantial bur­
dens on both the EEOC and the courts.

This case is an appropriate vehicle for resolution of 
the question presented. Because respondent has not 
challenged the district court’s finding that it engaged in 
practices made unlawful by the disparate-impact provi­
sions of Title VII, see Pet. App. 28a-42a, the question of 
timeliness is clearly delineated and outcome-determina­
tive. This Court’s review is warranted.

The petition for a writ of certiorari should be granted. 
Respectfully submitted.

CONCLUSION

Elena Kagan 
Solicitor General

Loretta King 
Acting Assistant Attorney

James L. Lee 
Deputy General Counsel 

Lorraine C. Davis
Acting Associate General 

Counsel

General
Neal Kumar Katyal 

Deputy Solicitor General
Leondra R. Kruger 

Assistant to the Solicitor
Anne Noel Occhialino 

Attorney
Equal Employment 

Opportunity Commission

General
Dennis J. Dimsey 
Teresa Kwong 

Attorneys

A u g u s t  2009