Kagan’s Brief on Title VII’s Statute of Limitations for Disparate Impact

The City of Chicago administered a written examination to 26,000 applicants as part of its hiring process for entry-level firefighters. After scoring the tests, the results were grouped into three categories: applicants who scored 89 or above deemed “well qualified”; applicants who scored between 65 and 88 deemed “qualified”; applicants who scored lower than 65 deemed as having failed the exam. The “well qualified” group consisted of 75.8% white and 11.5% African-American. African-American applicants filed suit, contending that the cutoff scores had a disparate impact on racial minorities.

In Lewis v. City of Chicago, the Seventh Circuit Court of Appeals found that the charge of discrimination had been filed too long after the City announced it would exclude applicants on the basis of the test. Thus, the applicants had failed to meet Title VII’s statute of limitations, because the applicants had waited longer than the appropriate time after the employment practice in question had been adopted to file their discrimination charge.

In Elena Kagan’s Solicitor General brief, she argued that the charge of discrimination had been timely filed because, in a disparate impact case, the employment practice can be challenged not only when the practice is adopted, but also when it is later applied to fill open slots. While the applicants may not have filed their discrimination charge within the appropriate time from the date the employment practice was adopted, the charge had been appropriately filed from the date it was applied.

The U.S. Supreme Court agreed with Kagan and the employees in a unanimous decision. According to the Court, the discriminatory impact had not just occurred when the employment practice was adopted but also when the employment practice was applied.

For other posts on Kagan, click here, here, here, here, here, here, here, here, and here.