LEWIS v. CHICAGO

Print this transcript Transcript: 

ORAL ARGUMENT OF JOHN A. PAYTON ON BEHALF OF THE PETITIONERS

Chief Justice John G. Roberts: We'll hear argument next in Case 08-974, Lewis v. The City of Chicago.

Mr. Payton.

Mr. Payton: Mr. Chief Justice, and may it please the Court: On 11 separate occasions, Chicago used an unlawful cutoff score to determine which applicants it would hire as firefighters.

There's no dispute that the cutoff score had an adverse impact on qualified black applicants and was not job-related.

The only question presented is whether each use of the cutoff score in each of the hiring rounds was a separate violation of Title VII.

An affirmative answer to that question is both the best reading of the statute and the soundest policy.

Section 703(k) of Title VII provides that in a disparate impact case, as this case, an unlawful employment practice is established -- those are the words -- "is established" when, quote,

"a respondent uses an employment practice that causes disparate impact on the basis of race. "

close quote.

Section 703(h) states that, quote,

"a test, its application, and action upon the results. "

close quote, are each violations of Title VII if they are, quote, "used to discriminate", close quote.

Section 703(a)(2) prohibits racially discriminatory classifications.

Chief Justice John G. Roberts: So under your position, say the City adopts a discriminatory -- takes a -- issues a discriminatory test; people take it; they come out with the results; the City says these -- this is the test we're going to use, but, you know, we don't have any vacancies.

Nobody can sue at that point.

Mr. Payton: No, no.

Our position is that in fact there was an additional violation when the classification occurred when the City announced what it intended to do in the future.

That's also a violation.

But if I can make the contrast, Mr. Chief Justice, when the City -- suppose they didn't announce anything at all, and what they did was in all those occasions, the 11 I just described -- they used the unlawful cutoff score and made hiring decisions.

Title VII's disparate impact looks at the consequences of decisions like that.

And those consequences, the results of that clearly occur in the future on those 11 hiring occasions, and then we would clearly have a cause of action on each of those 11 times.

Now, I'll come back and say that Chicago announces, before it does any of that, that it intends to do that in the future.

That announcement is an independent violation, but that announcement does not change the impact and the consequences that in fact still would happen in the future when they happen.

Justice Antonin Scalia: There's an independent violation without an impact?

I mean, it's not the impact provision that you quoted which makes that a violation.

It must be some other provision that makes it a violation.

What other provision is it?

Mr. Payton: Well, there is an impact.

You mean when the announcement is made?

Justice Antonin Scalia: Right.

Mr. Payton: When the announcement is made -- let me make two points: First of all, I believe we -- you could clearly seek to enjoin Chicago from doing something unlawful in the future--

Justice Antonin Scalia: Sure.

Mr. Payton: --as you clearly have a cause of action at the announcement.

We know that.

Justice Antonin Scalia: Well, that's because of an impending violation.

Mr. Payton: Because an impending violation--

Justice Antonin Scalia: But you say -- you say it is an actual violation.

Mr. Payton: --Yes.

And the question whether or not the announcement itself is in violation of the statute, I believe section 703(a)(2) and, actually, all three provisions, make it unlawful to actually have a classification that has the effects I just said, and the effects would simply be in how they were sorting the results.

So I think there is an impact.

It's not the same impact that ripples through time.

And the reason I said, if they had not made an announcement it's clear there are consequences that happen in the future each of those 11 times, there's an additional violation when they actually use the announcement to say what they intend to do.

They say what they intend to do, and then they do it.

Those are two different violations.

Justice Sonia Sotomayor: Counsel, the language of the statute of 703 is to

"limit, segregate, or classify. "

Mr. Payton: Yes.

Justice Sonia Sotomayor: So is it your position that the violation occurs at the classification that's announced and that every subsequent hiring has limited someone's opportunity so that they -- there's a violation subsequently under the limit clause as opposed to the classification clause, or it's each event is a classification violation?

Mr. Payton: It's our position that, in fact, all three of the sections I quoted from are implicated in the actions that Chicago took.

Clearly, there's a classification, but when they actually exclude from actual consideration for any of the jobs on the 11 occasions, that's a limitation.

It's clearly a limitation.

When they use the test results, that's an action upon the test results.

When they use that to make decisions, that's clearly a violation of (k).

All three provisions are in fact implicated, sometimes in similar ways, sometimes in different ways.

All of them have consequences.

And the way disparate impact law works is, you have an employment practice -- it's always facially neutral -- that has an adverse impact on the basis of race that causes there to be a disparate impact and consequences.

We look at consequences, and the elements of the disparate impact violation are not complete until we have all of those elements.

Justice Samuel Alito: Your position may -- may follow from the language of Title VII, but you began by saying that it also represents the best policy.

And I wonder if you could explain why that is so.

Here, the City of Chicago continued to use this test for quite a number of years after it was administered.

And so as you interpret the statute, I gather that someone could still file a disparate impact claim 6 or 7 years after the test was first administered, and quite a few years after it was first used in making a hiring decision.

And how can that be squared with Congress's evident desire in Title VII to require that an EEOC charge be filed rather promptly after the employment action is taken?

Mr. Payton: I think the answer is that this is completely consistent with how the statute works, but I'm going to address the policy concern as well.

But how the statute works is, there's a violation every time there's a use.

If we looked at disparate treatment, there's a violation every time there's an intention to discriminate.

If there was a future intention to discriminate, there would be a new violation.

So if there is a next use, there's a next violation.

And that's how that ought to work.

But look at how this worked.

Chicago used an unlawful cutoff score on those 11 occasions to make decisions.

Chicago should have stopped using the discriminatory cutoff score, and it should have looked at all of the qualified applicants that it had judged qualified in making its decisions.

Justice Ruth Bader Ginsburg: If it -- if it stopped using it, it might be vulnerable to a Rizzo-type suit from the people who were benefiting.

Mr. Payton: I actually think that that conflict is not present.

Chicago can always make a decision that responds to something that was unlawful.

And I think this Court has always made it clear the standard may be in Ricci, but the law is clearly that if Chicago has reason to believe -- very good reason to believe that it is doing something that is unlawful, it can stop doing something unlawful.

That's especially the case here.

Justice Ruth Bader Ginsburg: I thought in Ricci that was New Haven's position, that they thought that the test was unlawful because of the disparate impact.

Mr. Payton: I understand.

The standard that may apply to Chicago's decision may be different, but let me give you the example in this case.

Chicago used a cutoff score that the district court finds and that their expert who designed the test told them was problematic, to make decisions that has nothing job-related about it at all.

It's arbitrary.

The group that are qualified are as qualified as the group that are well qualified and vice versa.

They had available to them the option of picking randomly from that group, both groups combined, and making the decisions on a random draw.

That is, in fact, how they made all of the decisions inside of the groups that they used.

That's always available.

Chicago could have done that at any time.

The policy point here, Justice Alito, is that -- I'd say the animating purpose behind Title VII is, as this Court has said, the eradication of discrimination from our workplace.

And you want it to be eradicated.

Chicago should not have continued doing this.

And the law ought to say, and I think it does say, that when they use something that is unlawful, they can be challenged every time they use something that is unlawful.

If the--

Justice Ruth Bader Ginsburg: How long does the City's exposure persist?

Let's say that the -- in the tenth round, someone is selected for the job from the qualified group.

And then there's a cutback, and there are going to be layoffs.

So the last hired is the first fired.

Could -- would there be a Title VII suit when that last hired is laid off, on the ground that if Chicago had done what it was supposed to do, this person would have had the job long ago and would be higher up on the seniority list?

Mr. Payton: --Let me give you two responses to that.

The first answer is that the statute of limitations is 300 days after every use, and it's no longer.

So for whatever it is, if you violate Title VII, the statute of limitations is 300 days.

If there is a use that goes into the future, it's 300 days after the last use.

Right now, Chicago has stopped using that.

The doors are closed.

No one else can challenge this.

To your specific question about how would it work if there was a layoff arrangement, the proposed -- the remedy order in this case -- it's not in effect because we are where we are -- but the remedy order in this case includes shutting down the use of this, but it also has provisions for seniority to in fact address, I believe, exactly the circumstances you just described, Justice Ginsburg.

So I believe that is contemplated and handled in the remedial order.

The issue about the policy here, though, is that if you don't say that a use, in fact, can be challenged, a use of something unlawful can be challenged, what you could end up with here is that Chicago would then take the message that it's okay once they are past the first 300 days, and they could just go on using the discriminatory cutoff score over and over and over again, and that is inconsistent with the overall policy of what Title VII is trying to root out of our economy and in our workplace.

Justice John Paul Stevens: Mr. Payton, can I ask this general question?

Am I correct that each firefighter in the qualified group who did not make the well-qualified has a cause of action as though he had been refused employment when anyone else is hired?

There were 11 people hired, as I understand.

Did each one of those hirings give everybody else in the class a cause of action?

Mr. Payton: The group of the black qualified applicants that are in the qualified category, but the qualified category is qualified as the other category -- every time the city made decisions about filling jobs in the fire department, it excluded every single one of those applicants, even though they were qualified.

So every single one was excluded.

So they all have a cause of action because they were excluded and that clearly fits very easily within how--

Justice John Paul Stevens: But surely they couldn't all recover, because there was only one job available.

Mr. Payton: --No.

That's correct.

That's about what the remedy would be.

So the remedy and -- you know, obviously wouldn't be to give all of them jobs.

That's not the remedy, and that wasn't the remedy that's sought -- was sought here.

But they were all excluded from consideration, and that's a violation of Title VII's disparate impact prohibition.

So they all have a cause of action.

The way the remedy would work--

Justice John Paul Stevens: What is -- what is the remedy other than saying change your practice?

What is -- say one person sues and asks for damages, what would the remedy be for a single applicant who was not hired at the time somebody else was hired?

Mr. Payton: --It may be very little.

So if it's a single applicant who sues and not a class -- this is a class.

So if a single applicant sues, the remedy would be to stop using the unlawful cutoff score, okay, and then to figure out what would have happened if that unlawful cutoff score hadn't have occurred, and that would have created a very miniscule chance of ever becoming a firefighter and perhaps turning that into some sort of damage award, but it would be miniscule.

In the actual event, the award includes some actual jobs being allocated to the 6,000 members of the class -- it was 132 -- to be decided upon in some random way that they would be hired.

But that's how it would work.

But they are all clearly injured when they are all excluded from consideration in all 11 rounds, in violation of Title VII.

Chief Justice John G. Roberts: But that -- each -- each qualified firefighter who did not get a job because the well-qualified one did has a new cause of action, I guess, every time somebody is hired from the -- the well-qualified pool?

Mr. Payton: Every time--

Chief Justice John G. Roberts: In other words, somebody is hired, that constitutes discrimination against the qualified black firefighter who was not hired, and then another -- then somebody else is hired -- each time it's a new cause of action?

Mr. Payton: --They had 11 rounds of hiring--

Chief Justice John G. Roberts: Yes.

Mr. Payton: --that are relevant to this case.

There are other rounds afterwards.

They exhaust the first category.

But in the 11 rounds of hiring, when in every one of those rounds the unlawful cutoff score is used, that is action upon the results.

That is a limitation.

You know, that is the use of something that causes an adverse impact on the basis of race -- and, yes--

Chief Justice John G. Roberts: Yes, so they would have a new cause of action, sure.

Mr. Payton: --That's a cause of action.

Chief Justice John G. Roberts: Now, but they -- but if 300 days go from the first round of hiring, they don't -- they cannot sort of piggyback that onto a later cause of action.

Mr. Payton: Yes, if they sue -- in this case, the EEOC charge was filed after the second round of hiring, and in this case then, therefore, no remedy can take account of the first round of hiring.

If they had sued only on the seventh round of hiring, no remedy could take account of those forgone opportunities.

So, that would also play out in how the remedial order would work.

And I think I want to reserve the rest of my time.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Katyal.

ORAL ARGUMENT OF NEAL K. KATYAL ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS

Neal K. Katyal: Thank you, Mr. Chief Justice, and may it please the Court: As the questions I think reveal, I think the bottom line question in this case is whether or not under the text of Title VII there was a present violation in each of the 11 rounds of hiring when the City of Chicago relied on its concededly discriminatory test to exclude the plaintiffs from consideration.

And we think that Title VII has three mutually reinforcing provisions in it, each of which point to the same conclusion.

A violation of Title VII occurred in this case when Chicago, in each of those 11 rounds, used its hiring practice with -- and caused a disparate impact, thereby limiting the employment opportunities of certain applicants.

Chicago gave an ability test and relied on that ability test in a way that Title VII forbids.

It took action upon the results of that discriminatory test in a way that arbitrarily excluded qualified applicants from being hired.

Justice Alito, I think -- in response to your question, I think our position follows entirely from the text of the statute.

We're not as concerned about the policy consequences, though we do think that if the Court were concerned about the policy consequences, we think that there's a good reason why Congress distinguished between disparate treatment and disparate impact litigation.

But it's the language of Title VII itself, and in particular 703(h), which forbids action upon the results.

Justice Samuel Alito: Why would Congress have wanted to allow a question like this to be left open for such an extended period of time?

Why would it not have wanted everybody who is potentially affected by it to understand where things stand at a much earlier point, at some reasonable period of time after all of the information is in the -- in the possession of a potential plaintiff to determine whether there has been a disparate impact and whether that -- that person is going to be adversely affected by it, particularly if at a later point the effect of a remedial decree can be to upset the employment -- the employment status of other people who have been hired in the interim?

Neal K. Katyal: I agree that there -- there might be policy arguments against it as well as for it, but here's the way I think we look at it -- and the United States is the nation's largest employer, and we face similar concerns.

We give certain tests.

But I think what might have been -- what was probably animating Congress was a fear that if the rule of the City of Chicago were adopted, then an employer who made it 300 days without an EEOC charge being filed, 300 days after the announcement of the test results, would then be able to for all time use that discriminatory test, and it would lock in that period, that test, for as long as 10, 20 years, and Congress could have legitimately worried about if a test made it 300 days, an employer essentially had a get-out-of-jail -- free card to use for all time.

And I would say that that precise thing appears to have happened in this very case.

At Joint Appendix page 54, when the City announced its test results in January of 1996, it said it intended to use this test for only 3 years through 1999.

Afterwards, 1999 came, the City, in the City's own briefs -- this is the court of appeals brief at page 12 -- they admit they made a new decision to continue using this test and the test results for subsequent hiring rounds.

That was a new decision, and indeed that's a decision, I think, many employers would logically make after 3 years, because then they don't have to worry about the possibility of a disparate impact lawsuit.

And since, as this Court said in Ricci, one of the goals of Title VII is really to encourage voluntary compliance on the part of employers, adopting a rule like the City of Chicago's is really antithetical to that, because then it will essentially lock in for all time that old discriminatory test.

I think another reason policy -- another policy reason Congress may have thought about is that a rule that forced people to file within 300 days might be damaging to the EEOC and divisive to employers, because it would say you only have that 300-day period to file, even before all the consequences of the -- of the -- of the employment decision are fully understood.

Justice Anthony Kennedy: Well, actually in -- in this case, am I correct that -- that 9 years has gone by, but that's because of the litigation?

The suit was filed, what, 4 months after the 300-day period ran?

Neal K. Katyal: The first charge was filed, I believe, 420 days after the January 26th announcement of the test results.

And, yes, Justice Kennedy, then there was a period of discovery and litigation over business necessity and the like.

And in this case, the City admitted in other litigation that there was no basis for giving this 89 cutoff score, that a person who scored 65 was just as likely to succeed as a firefighter as a person who was -- who had scored 89.

Justice Stevens, you had asked about the remedy in the case, and here's how we understand the way remedies work in disparate impact litigation: It's largely injunctive in nature.

It's mostly about preventing future problems.

There is a back pay claim that is available that is statutorily capped at 2 years.

Not everyone in this 6,000-person class could get that full amount of back pay obviously.

Instead, what happened here, there was a remedial phase at trial, and what they did was they decided that -- the experts on both sides admitted that 132 people, approximately, would have been hired out of that class, and that provided the appropriate amount of back pay.

Chief Justice John G. Roberts: So you get--

Justice Anthony Kennedy: Was it -- was it 132 named people or was it just 132 undifferentiated?

Neal K. Katyal: I think it was 132 undifferentiated people, and then I think there -- and Mr. Payton can, I think, fully explain how the randomization of awards was allocated.

Chief Justice John G. Roberts: --So everybody gets 132 over 6,000 times whatever the number of people who would have been hired?

Neal K. Katyal: Right.

And--

Chief Justice John G. Roberts: I mean the pay for the number of people.

Neal K. Katyal: --Right.

And, Mr. Chief Justice, to respond to your concern before, that amount of money is not -- you couldn't go back and look to earlier periods of time outside of the statute of limitations, outside of the 300-day period, rather only any subsequent use.

For example, in this case the remedy couldn't look to the first round of hiring because no lawsuit was brought within that first round of hiring.

It was brought at the -- it was brought after the second round of hiring.

Justice Ruth Bader Ginsburg: I think you had a footnote in your reply brief that said that if your position prevails there would need to be an adjustment in the relief granted by the district court--

Neal K. Katyal: That is--

Justice Ruth Bader Ginsburg: --wasn't it?

Neal K. Katyal: --That is correct.

And I think that the Petitioners agree with that as well.

And that's I think a further limit on the way in which this present violation theory operates as a matter of practice.

Now, this Court has said in cases such as Ledbetter that -- that there must be a present violation, and disparate impact litigation looks quite different than disparate treatment litigation in practice, because disparate impact litigation doesn't need that missing element that has been at issue in Ledbetter and Evans and Ricks, of discriminatory intent at that subsequent time of action.

Here, in a disparate impact case, all that need be shown by the plaintiff is adverse impact, and that adverse impact happens in each of those 11 rounds of hiring.

Each of the time -- each time the City used its test results and drew a line and said, you under 89, we are not looking at you, that was action upon the results, to use the language of (h)(2).

Justice Antonin Scalia: And that would be clear even though it had not been established much earlier that the test was invalid.

So a city could go along using a test that was an invalid test, not declared such; 10 years later, somebody comes up and says: This test that is being applied to me is an invalid test.

Neal K. Katyal: That's exactly correct, Justice Scalia.

Justice Antonin Scalia: What -- of what use is a statute of limitations that -- that -- that operates that way?

Neal K. Katyal: Let me say two things: First is I think (h)(2) refers to 10 years is itself action upon the results, and so I think as a statutory matter the language decides it.

Now, with respect to the policy reason, I think the reason is that otherwise Congress had to fear precisely what you're saying, that an employer 10 years from now would use that discriminatory test, because they knew they had made it past the 300-day initial phase of time, and then could use it for all time.

And so the statute of limitations and the concerns about repose work hand in hand with other concerns of Title VII, and in particular incentivizing employers to ensure voluntary compliance with the law of Title VII, and which this Court said in Griggs, the goal of which is to eradicate discrimination from the United States' labor markets.

Chief Justice John G. Roberts: So I suppose the benefit is not that the City knows it's safe -- it can rely on a test and all that -- but knows that it only has to pay 300 days back.

Neal K. Katyal: That is -- that is -- that is the benefit of that particular back pay limitation, yes.

But in a case like this, where the City knows very well, this test is discriminatory and, indeed, has said so in litigation, I think Congress wanted to incentivize and make sure there was an ability for people to sue at each time that discriminatory test was used.

If there are no further questions.

Chief Justice John G. Roberts: Thank you, counsel.

Ms. Solomon.

ORAL ARGUMENT OF BENNA RUTH SOLOMON ON BEHALF OF THE RESPONDENT

Ms Solomon: Thank you, Mr. Chief Justice, and may it please the Court: In January 1996, the City adopted and announced an eligibility list for hiring candidates who sat for the firefighters' examination.

Petitioners were told that a priority pool had been created, that based on their scores they were not classified in that pool, and that further consideration of candidates would be limited to those who were in the priority pool, at least until everyone in that pool had been called for processing.

The City also publicly admitted that this tiered eligibility list had adverse impact on African-Americans, and Petitioners were aware of this.

But Petitioners did not file charges challenging the exam and the cutoff score within 300 days after the tiered eligibility list was adopted and announced.

Now they contend that charges can be filed to challenge the same exam and the same cutoff score every time the City hired from the priority hiring pool.

That position cannot be squared with the statute.

Calling other applicants from a hiring pool from which Petitioners had already been excluded did not limit or classify Petitioners in any way.

Justice Ruth Bader Ginsburg: Suppose there were no list, but each time there was a hiring round the City just took from the top -- from the top score down.

There's no list, but each time the City uses the test results and hires the people with the top scores.

Ms Solomon: If I understand correctly, that would be the same case as this, for this reason: A list is used in a couple of different ways.

A list might be used to describe the strict rank ordering that Your Honor is describing, and in that case, once there is that kind of a list, it's the same as this case.

What happened in this case after that kind of a list was made, we also drew another line, which was the priority hiring pool.

Justice Ruth Bader Ginsburg: No, my -- my hypothetical was there's no list at all.

Ms Solomon: If--

Justice Ruth Bader Ginsburg: They just go back to the raw scores, and each time they picked the top people.

Ms Solomon: --So that actually -- if we're going back to the scores but no announcement has been made ever that we are going to use the scores in a certain way, we agree that every time the city actually consulted the scores, there would be a new claim.

But that's because--

Justice Ruth Bader Ginsburg: Well, what is -- what is the list, other than an administratively convenient way to use the scores?

Ms Solomon: --The list was the device that limited and classified Petitioners in this case, and that's why it's so important.

Because in order to have a present cause of action, section (a)(2) -- under section (a)(2), which is the disparate impact provision, Petitioners have to point to something in the charging period that actually limited and classified them.

And that was the effect of the list, and including the priority hiring pool.

In a case where there is no general practice, no announcement, no decision, nothing, but rather every time the City makes hiring, the City undertakes a new decision with new criteria, then it is making a decision at that point; it is engaging in a practice that is then at that time limiting and classifying the Petitioners.

What happened--

Justice Ruth Bader Ginsburg: So even though there is a clear case on the merits of disparate impact, unless the suit is commenced within 30 days of the announcement, then it's as though it were lawful.

That's your position.

Ms Solomon: --The statute, (a)(2), requires an unlawful--

Justice Ruth Bader Ginsburg: Is that -- is that -- there's a free pass.

You don't sue within 30 days of the compilation of the list and the notice of the list; you sue 420 days later.

The discriminatory practice gets frozen, the status quo gets frozen forever.

That's -- that is your position, is it not?

Ms Solomon: --That is the function of the operation of the statute of limitations, and of course it's not unique to Title VII.

Justice Ruth Bader Ginsburg: But this is not exactly a title -- a statute of limitations.

It's a time you have to file your charge.

It's a charge filing.

Ms Solomon: Correct.

And--

Justice Ruth Bader Ginsburg: There's also a 2-year statute of limitations in Title VII.

You can't get back pay, I think, for more than 2 years.

Ms Solomon: --The 300-day charging period under Title VII functions like a statute of limitations, and when a timely charge is not filed, no recovery can be had for that claim.

And the Court has said that over and over in a series of disparate treatment cases.

Now, the defining feature--

Justice Ruth Bader Ginsburg: You -- you don't have one case, I think, certainly not from this Court, of disparate impact.

All the cases that you cite are disparate treatment cases.

Ms Solomon: --The cases are disparate treatment cases, Justice Ginsburg, but the rule should be the same in this case for several reasons: First, those cases reflect that the reason there is not a present violation when the consequences of a prior discriminatory act are felt is because the defining feature of the claim is absent within the charging period.

Now, that is a perfectly good rule, no matter whether it's discriminatory treatment or discriminatory impact.

And in this case, the defining feature, namely disparate impact in the sense defined by the statute, required by the statute, to limit or classify in a way that denies people employment opportunities based on race -- that defining feature was absent within the charging period.

Justice Stephen G. Breyer: How is it absent?

Because the statute says that the established -- the -- it's established -- namely, the unlawful employment practice -- it's established only if, and certainly if, the respondent uses--

Ms Solomon: Right.

Justice Stephen G. Breyer: --a particular employment practice that has a disparate impact.

That refers back to (a)(2).

So back in that period, on a certain date, he used that limiting practice, and, therefore, on that particular date, he established the unlawful employment practice by using a test that limited, et cetera.

Ms Solomon: I -- I have two responses, Justice Breyer, and the first is that section (k), which is what Your Honor is quoting from, does not describe accrual, and it does not define the underlying violation.

It talks about when an -- excuse me, when a violation is established.

And what's so interesting is that the reliance on those words (k).

You actually can't apply section (k) literally to this case and have anything that approaches anything that makes sense.

And that's because section (k) actually goes on after those words that get highlighted over and over, and it's -- and it refers to the rest of what happens in a case when a claim of disparate impact is tried.

And so if you--

Justice Sonia Sotomayor: So why don't we look at subsection (h)--

Ms Solomon: --Subsection--

Justice Sonia Sotomayor: --that says -- and it's an --

"it shall be an unlawful employment practice for an employer to give and. "

--conjunctive -- "and act upon the results".

Ms Solomon: --Correct.

Justice Sonia Sotomayor: So when you hire, aren't you acting upon the results?

And how are you acting upon -- you may be acting upon it, as Petitioner argues, when you classify, but why aren't you acting upon when you hire?

Ms Solomon: Because there is no act that limits and classifies.

And what's interesting about section (h), it's not--

Justice Sonia Sotomayor: I -- I go back to Justice Breyer's point.

Isn't it, in the very act of hiring, you are using the test results and saying -- each time you do it, you're saying: I'm going to cut off at this limit, and I'm not going to consider someone outside of this limited tier.

Ms Solomon: --Well, that's what is actually missing in this case.

The city did not go back to the test results, and it did not -- it did not create -- engage in a new decision or a new practice.

Justice Sonia Sotomayor: But isn't that what "practice and policy" means?

Meaning that each time, as you continue forward, you are using a particular practice, a particular policy?

Ms Solomon: Petitioners continued to be ineligible for as long as the list was used in the way that we said at the outset it was going to be used; namely, that the well-qualified pool, the priority hiring pool, would be called first.

The reason they continued to be ineligible is because they had been limited and classified as ineligible until the priority pool was hired first.

That was the only practice that had adverse impact within -- as required by the statute, meaning limit and classify.

Now, to complete my answer to Justice Breyer--

Justice John Paul Stevens: May I ask this question, Ms. Solomon?

Would your argument be the same if the practice in this case were -- required a high school diploma?

Did you understand my question?

Ms Solomon: --I'm sorry.

I didn't realize you had finished.

Excuse me.

Justice John Paul Stevens: Suppose the practice were a high school diploma.

Could that -- would you make the same argument as you're making today?

Justice Ruth Bader Ginsburg: And let's add to that, that it was adopted 10 years ago--

Justice John Paul Stevens: That's right.

Justice Ruth Bader Ginsburg: --and Duke Power announced to the world that it was going to use a high school diploma.

Indeed, it listed in the county all of the high school graduates and said: This is the list.

Ms Solomon: A case like that might present different accrual problems for this reason: There might be several appropriate times when a person affected by a policy like that could be said actually to have been limited and classified in their employment opportunities.

And it could be when they enter grade school, but that is not an appropriate time, so if it's 10 years before the act -- so that person is -- is roughly 8 years old.

It could be when they apply to the employer.

It could be a variety of other times.

But those cases, whatever difficult accrual problems and questions they present, they are not presented here, because this was a closed universe.

Everybody affected by the City's eligibility list and the test and the cutoff score knew from the moment--

Justice John Paul Stevens: No, but -- but in my example, everybody who is not a high school graduate would have been affected right away.

Ms Solomon: --But if they are not interested in employment with that employer, then they are not -- it -- you -- they are certainly affected in one sense of the word, but they're perhaps -- it would not be possible to say their employment opportunities had been affected.

We certainly agree that there should be one time to challenge every employment practice that has an unlawful disparate impact, but the question in this case is whether there is more than one to challenge exactly the same thing?

Petitioners--

Chief Justice John G. Roberts: You force people to challenge the practice when they don't even know if it's going to affect them.

In the hypothetical that has been discussed, somebody who didn't graduate from high school, you know, wants to be something other than a firefighter.

But that doesn't work out, and then he says, well, now I want to be a firefighter.

And they say, well, you can't, because you didn't graduate from high school.

Ms Solomon: --Right.

Chief Justice John G. Roberts: And I think your position is that, well, he should have filed that suit earlier, no?

Ms Solomon: Our position is that the charging period runs from the unlawful practice.

And the Court has stressed it is important to confirm--

Chief Justice John G. Roberts: Well, but what is the unlawful practice?

Ms Solomon: --The unlawful practice here was limiting and classifying Petitioners in a way that deprived them of their employment opportunities.

This is what -- this -- what they were told--

Justice Ruth Bader Ginsburg: Can we put that in concrete terms?

It was the 89 percent cutoff, so that anybody who got below 89 percent on the test was never going to be considered until all the first people who got 89 to 98.

Ms Solomon: --Correct.

And after that decision was made, there was nothing else that Chicago did that affected Petitioners in the terms required by the statute.

Hiring others did not adversely affect Petitioners because they were--

Justice Sonia Sotomayor: So could you answer Justice Stevens's hypothetical?

What is the difference between those people and each person who does not have a high school diploma is not -- and is not hired?

Does that mean that the moment that they announce the high school diploma requirement, that everybody who had already received one, whether they wanted to work at this job or not, had to sue, and it's only those people who just received the high school diploma who can sue 10 years later?

Ms Solomon: --The statute requires that the -- the complainant be limited and classified in their employment opportunity.

So--

Justice Sonia Sotomayor: So what is the difference between the policy announcement that each time I hire, I'm not going to use a high school -- I'm not going to look at people who don't have a high school diploma, and I'm not going to look at people who don't have a test score above 89.

What's the difference between those?

Ms Solomon: --The difference is that once Petitioners here were classified out of the eligible pool for priority hiring, they were out.

They were simply out.

They were not being considered anymore at all.

We didn't go back to look at the test.

We didn't consider Petitioners.

We didn't reject them each time.

There could be--

Justice Samuel Alito: Well, somebody getting -- someone getting a letter that you sent to people who were qualified didn't know that.

The only thing that I see that you sent to the people who fell into the qualified category was that it was unlikely, which I take it means less than 50 percent, that they would be called for further processing, but it was possible that they would be called for further processing.

You didn't tell them anything about -- you didn't tell them that you were going to fill all of your available positions with people who were classified as well qualified in that letter--

Ms Solomon: --With respect--

Justice Samuel Alito: --did you?

Ms Solomon: --With respect, Justice Alito, the letter does say that because of the large number of people who were classified well-qualified, a step ahead of where Petitioners were classified, it was not likely that they were going to be hired.

Justice Samuel Alito: Right.

That's right.

Ms Solomon: And for that reason, that is when the injury and the impact was felt.

Whatever else later happened, whether Chicago hired a lot of people, Chicago hired no one, whether Chicago even hired some of the Petitioners, they had years' worth of delay.

And at this point in the litigation, it is undisputed.

The City made 149 hires from the first use of the list.

That's more than any other class--

Chief Justice John G. Roberts: Just to follow up on Justice Alito's question, what if it were different?

What if the letter said, look, you didn't get, you're not well qualified, but we really do expect to hire a lot more, so, you know, keep your fingers crossed.

There's a good chance that you are going to be hired.

And you say those people should have sued right then?

Ms Solomon: --Correct.

Because the impact, at a minimum, is the delay in hiring.

And the Court has made quite clear that you don't -- a complainant or plaintiff does not have to feel all of the consequences right at the outset to--

Chief Justice John G. Roberts: Well, that's kind of a bad policy, isn't it?

You're telling people who may probably not be injured at all -- you are saying, well, you still have to go into Federal court and sue.

Ms Solomon: --With respect, Chief Justice Roberts, they are injured.

Their hiring will be delayed, possibly substantially.

Chief Justice John G. Roberts: Oh, sure.

No, I understand that, but, you know, let's say we think we are going to hire -- if the budget plan goes through, we think we're going to hire everybody else by -- in 4 months.

And you're saying, well, those people have to sue anyway because they are injured by the 4-month delay.

Ms Solomon: They are injured by a 4-month delay.

Chief Justice John G. Roberts: Yes.

Ms Solomon: But there may be circumstances in which information is not conveyed in a way that would put a reasonable person on notice that he or she had a claim right at the outset, and that relates also to the high school diploma hypothetical.

If the--

Justice Samuel Alito: Well, why did the City say that it was planning to give a new test in 3 years and then wait more than a decade before giving a new test?

If I received one of these qualified letters, and I also -- and I knew in addition that the City was going to give a test in 3 years, that might well affect my incentive about bringing a lawsuit to challenge this.

Ms Solomon: --But it wouldn't change the fact that there had been, at least a -- if you wait for the next list, you still have been delayed at least 3 years in your ability to be hired as a firefighter.

And as far as the reason why we didn't follow through on the aspirational goal of giving another test within 3 years, the tests are very difficult and expensive to deliver, I think -- to develop, excuse me.

The record in this case actually makes that clear.

Despite rather significant steps, including the use of a prominent African-American industrial psychologist to develop this test, it had severe adverse impact.

The test actually compares rather favorably to the test that was given in the City of New Haven, but the district court invalidated it, and, you know, we did undertake to develop a new test.

But--

Justice Samuel Alito: But you don't challenge that.

Ms Solomon: --surely the Court--

Justice Samuel Alito: You don't challenge that.

You now acknowledge that the Plaintiffs were treated unlawfully.

Ms Solomon: --We have not pressed that claim.

That is correct, Justice Alito, but--

Justice Samuel Alito: And were you prejudiced by the delay in the filing of the EEOC charge?

Ms Solomon: --There was some testimony -- and we quote it in our brief -- about things that the person responsible for setting the cutoff score could not remember.

But a statute of limitations actually doesn't require prejudice, so we didn't undertake to try to prove that.

The -- repose arises naturally at the end of the charging period.

It's not something that -- that the defendant has to earn either by capitulating to the plaintiffs' demands or otherwise proving prejudice.

And in a case like this, it -- it wasn't possible simply to take the list down.

The Court's opinion in Ricci makes that quite clear.

Our expert told us all the way through the trial -- he testified at the trial--

Justice Ruth Bader Ginsburg: You didn't have to take the list down.

You simply could have said: Anyone who got a passing score, anyone who is qualified -- we're not going to make the distinction between qualified and unqualified.

Ms Solomon: --I -- I believe--

Justice Ruth Bader Ginsburg: You didn't have to throw out the list.

Ms Solomon: --I believe--

Justice Ruth Bader Ginsburg: You didn't have to throw out the test.

Ms Solomon: --I believe the Court's opinion in Ricci addresses that as well.

That that's a -- a misuse of the test scores.

The expert was resolute even through the trial--

Justice Ruth Bader Ginsburg: I thought the expert said -- the test devisor said he didn't make up that 89 percent cutoff.

That was Chicago that made that -- that decision.

Ms Solomon: --He -- his reason for suggesting the 65 cutoff score was because of the adverse impact.

That was an attempt to deal with adverse impact, but his position was the test was valid to measure the cognitive aspects that it was attempting to measure, and that those related to the training firefighters had to undergo in the academy.

And he was clear as well, that a higher score created an inference that the person was more qualified to -- to perform in the way--

Justice Ruth Bader Ginsburg: But you -- you've lost -- you've lost on that.

Ms Solomon: --We have.

But the reason that I'm mentioning it is because it's not simply a matter of -- of why don't you take the list down.

At the time that the expert is telling us the test is valid and it can -- it gives rise to an inference that people closer to the top are better -- possess more of the cognitive abilities that the test was testing for, we would have at a minimum been courting disparate treatment liability to adjust the scores, to randomize them further, or to take the list down.

But to return--

Justice Ruth Bader Ginsburg: No, but -- but going to 65, opening up the classification, is not adjusting the scores; it's not taking the list down; it's just saying anyone who passes the test can proceed to the next step.

Ms Solomon: --It seriously diminished the opportunities of the people who were at 89 and above.

There were about 1,700 applicants at 89 or above, and there were 22,000 65 or above.

So calling in random order--

Chief Justice John G. Roberts: You've got to -- I mean, you've just got to take your -- get as good legal advice as you can and determine is it -- are we going to be in more trouble if we follow the test or more trouble if we -- if we take it down?

People have to do that all the time.

They look -- well, if I do this, I'm going to be in trouble; if I do this, I'm going to -- but I have got to decide what I should do.

Ms Solomon: --Correct, but read in conjunction with the 300-day charging period.

And I would like to follow up just briefly on answers to Justice Breyer and Justice Sotomayor.

Chief Justice John G. Roberts: Well, I'm sorry.

Read in conjunction with the 300 -- you have got to finish that sentence at least, before--

Ms Solomon: I -- I'm sorry.

That was the -- so, yes, at the point where the employer is assessing the options, the City was not sued within -- excuse me, charges were not filed within 300 days after the tiered eligibility list was adopted and announced.

Petitioners were aware that it had adverse impact.

No charges were filed then; no charges were filed after the first use of the list.

So at some point when the employer is weighing the options, the employer can also factor in the time to challenge this has passed.

What Petitioners seek here is new opportunities -- 11 -- 10 opportunities to challenge exactly the same thing that they -- that they would have challenged if they had filed a charge promptly.

They continue to emphasize that the eligibility pool, when compared with the pool of applicants, had a disparate impact.

But that's not a new violation.

That's not a new classification, and it doesn't limit anybody's opportunities in any way beyond what they were already limited.

That's the old violation.

That's the one they didn't charge.

Now, Petitioners do claim that the shortfall evidence showed that they -- showed and the use of the list had disparate impact each time.

But it actually didn't, either.

That also was the old violation.

That shortfall was compiled by comparing the number of African-Americans who were hired using the 89 cutoff score and the number who would have been called for further processing if--

Justice Antonin Scalia: How do you -- the problem I have with all of this -- it makes entire sense, except when you read subpart (k), it says

"an unlawful employment practice based on disparate impact is established. "

if

"a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race. "

Ms Solomon: --Correct.

But you have--

Justice Antonin Scalia: Which is what happened here.

Ms Solomon: --But the fact--

Justice Antonin Scalia: They used--

Ms Solomon: --Excuse me, Justice Scalia.

The statute goes on, and it describes the later things that happened at trial.

So in our view, read literally--

Justice Antonin Scalia: --Where -- where does it go on?

To say what?

Ms Solomon: --It goes on to say that the respondent fails to demonstrate that the challenged process is job-related, or subpart (ii), there is an alternative practice with less disparate impact.

So -- so (k), if (k) is going to be consulted at all, and we do not think that it should be, because section 706(e), which has always been thought of as the charging period, talks about an alleged unlawful practice, and that's what the person knows at the outset.

Section (k) talks about the burden of proof and how you go about proving these at trial, and that's why it uses the word "established".

But that's also why it describes the entirety of what happens at trial.

Read literally, you can pluck a few words out of the -- out of one of these provisions and say, aha, they used an employment practice.

You have to read the whole thing together if you're going to read it at all, and when you read the whole thing together, you come up with the absurd result that the charging period doesn't run until the district court brings the gavel down and determines that an unlawful practice has been established.

In this case, that would have meant that the people 65 and below could file charges within 300 days after the district court's decision, which is something like 11 years after the practice in this case.

And that's because that was the moment at which it was established.

And that's why we think that (k) does not bear on this.

And (h)--

Justice Stephen G. Breyer: Is my impression -- is there anything else in that (k)?

You see, it lists about 10 things, let's say 10 -- imagine.

One of those things is that it was used.

Now, all the other things there will not have been -- are things that -- that -- to do with the test, basically.

So you have like six or seven that have to do with the test and the criteria, and then you have one that it was used.

Ms Solomon: --Right, and that's why--

Justice Stephen G. Breyer: And -- and so I thought, looking at the list, it's quite right that it's used for a different purpose but--

Ms Solomon: --It's not--

Justice Stephen G. Breyer: --But, I mean, this (k) has to do with a different thing, but -- but -- and the critical element of it was that the practice be used.

Ms Solomon: --You -- but again, even if (k) is consulted -- and for the reasons that I just outlined we don't think that it should be.

It doesn't bear on accrual.

But even if (k) is consulted, it doesn't -- it doesn't say that any use of an employment practice is -- is a new unlawful act.

It has to be an employment practice that actually has disparate impact.

Justice Stephen G. Breyer: Well, you'd have to then say that all the things that are there, the other nine and so forth -- all those nine things--

Ms Solomon: This is actually--

Justice Stephen G. Breyer: --Well--

Ms Solomon: --Excuse me, Justice Breyer.

This is actually a slightly different point.

At the outset, I indicated why section (k) does not bear on accrual at all; it describes what happens at trial, and for that reason--

Justice Stephen G. Breyer: --Yes.

Ms Solomon: --you really can't pluck a few words out of the middle.

Justice Stephen G. Breyer: No, well, that's true -- it does--

Ms Solomon: But even if one is going to consult it to determine accrual, what it says is that the use of an employment practice with adverse impact.

And in this case there was only one, and that one was when Petitioners were limited and classified based on the test scores.

Nothing that happened after that, including hiring others, was an unlawful practice with disparate impact in a way that affected the Petitioners.

They had already been rejected.

When an employer says, I will not consider you for the position, or perhaps it says, I will not consider you for the position until I have considered a lot of other people first, that is a rejection.

Nothing that happens after that, whether the person hires somebody else, whether the person doesn't hire somebody else, whether they change their mind and later hire the person whom they had previously rejected -- Ricks, after all had a grievance pending.

It was certainly possible that that would change the outcome in the case, but the Court, nonetheless, says you cannot wait for the consequences to be felt.

Justice Ruth Bader Ginsburg: That was a disparate treatment case.

Ms Solomon: Correct, but there is no--

Justice Ruth Bader Ginsburg: And the -- the argument here is disparate impact is different because there's no need to show intent of disparate impact.

Ms Solomon: --Correct.

But the only practice in this case that had a disparate impact in the sense used by the statute was when the tiered eligibility list was made.

After that, of course there was a consequence of that.

Consequences can be felt in employment for a long time.

The people in the well-qualified pool were hired before Petitioners, they were paid before Petitioners, they are going to get their pensions before Petitioners.

Those things continue to have consequences.

But the Court has made clear that the consequences cannot be challenged by themselves unless there actually is a present violation.

Now, there is not even an argument in the other side's briefs, neither of them, that explains why there was an adverse impact based on race under (a)(2) at any point when the City used the list.

If one reads the briefs very carefully, one will see that those times when a claim is made in the briefs that we used an unlawful practice, it always goes back to the test and the list.

Simply keeping the list up after we announce it is not a new violation.

It is quite clear in the cases that the employer does not have to change a decision in order to obtain repose.

And, of course, the disparate treatment and disparate impact are simply different methods of proving a claim.

They are not different claims by themselves.

In this case, in addition to the statutory language, there are a number of policy reasons that while we don't rely on them heavily, we do rely on the statute.

They should nonetheless be considered in deciding this.

There was no sense in which a claim filed to challenge the list was premature.

It was the one act that actually limited and classified Petitioners.

Everything else that happened after that either didn't affect the Petitioners at all, as in hiring people who had made the cut, or it affected them only in the colloquial sense, that the consequences of the prior act continued.

Chicago did not have to revisit this in order to obtain repose.

The statute makes that quite clear.

Mr. Payton emphasizes only the policy of righting employment wrongs, but there are other policies in the statute.

In addition to repose, the statute makes clear that claims should be brought to the EEOC at the earliest opportunity.

Excuse me.

We ask that the judgment be affirmed.

Chief Justice John G. Roberts: --Thank you, counsel.

Mr. Payton, you have 5 minutes remaining.

REBUTTAL ARGUMENT OF JOHN A. PAYTON ON BEHALF OF THE PETITIONERS

Mr. Payton: Thank you.

This is a case about jobs.

And I want to read from the letter that Justice Alito was referring to.

This is the letter that the qualifieds received.

It's in our Joint Appendix at JA-35, and it's the last sentence of the first paragraph.

This is the letter that they all got.

This is the letter that Arthur Lewis, the named person in the case, got.

However, it says: You are qualified; you are qualified; there are well-qualifieds.

And it's unlikely -- that language is there.

And then it says:

"However, because it is not possible at this time to predict how many applicants will be hired in the next few years, your name will be kept on the eligible list maintained by the department of personnel for as long as that list is used. "

I did focus on the word "used".

And it's not only in section (k).

It's also in section (h), where it says, "used to discriminate".

Because it's an ordinary word that the City used itself in advising the Petitioners in this case.

In the answer to the complaint in this case, which is at Joint Appendix 19, the -- I'm sorry, Joint Appendix 16, the answer to -- actually, the first paragraph in the complaint in this case, the City says as follows -- this is the second sentence in the answer to the complaint: "Defendant" -- the City --

"admits that it has used and continues to use results of the 1995 firefighter entrance examination as part of its firefighter hiring process. "

Using an unlawful cutoff score -- and the eligibility list is nothing other than the functional equivalent of the cutoff score -- using that to make decisions on those 11 times is a violation of Title VII.

And the argument that there is no additional impact -- it is the dramatic difference between being told what someone intends to do and then they do it.

You are told that maybe your chances are going to be minimal in the future, or maybe 50/50, but then when it actually starts happening and you see other people start getting jobs, that's an impact.

That's a consequence.

When I said the animating principle in Title VII and disparate impact is result and consequences, it's results and consequences.

Those are additional impacts that go with the additional uses that clearly establish a violation of Title VII's disparate impact prohibition in this case.

I don't think that the statutory language is actually -- I think the best reading, as I said, of the statutory language is as I said.

I think the policies behind how that works -- it is 300 days after every use.

There is a statute, but, in fact, the control over that is entirely within the City.

If they stopped using this unlawful cutoff score after 300 days, they are completely done with any potential liability.

And the point is you want that to be challenged, because we don't want unlawful employment practices to continue to go forever and ever and ever and ever out there.

And we can see, in this very case, that if you don't allow the challenge, the practice goes on and is inconsistent with the -- I'd say the national policy to rid our workplace of discrimination.

Are there any other questions otherwise?

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Chief Justice Mr. Chief Justice Robers Jr.: Justice Scalia has our opinion this morning in case 08-974, Lewis versus the City of Chicago.

Justice Antonin Scalia: This case is here on writ of certiorari to the United States Court of Appeals for the Seventh Circuit.

In 1995, the City of Chicago, the respondent here administered a written examination of some 26,000 applicants seeking to service firefighters.

In January 1996, the city announced that it would begin growing randomly from the top tier of those who scored in this test, those who scored at least 89 out of a possible 100 in the city called well-qualified.

In January 1996 the city announced that it would begin drawing from that group.

The city informed those applicants whom it selected would move on to the next phase of the selection process.

The city informed those who scored below 65 that they had failed the examination and would not be considered for firefighter positions.

The applicants in the middle, those who scored between 65 and 88, in the city called qualified, were informed by letter that they had passed the examination but that given the number of well-qualified applicants, it was not likely they would be called for further process.

The letters added however that because it was not possible to predict how many applicants the city would hire in the next few years, the city would keep each qualified applicants name on the list of eligible applicants as long as it used that list.

In May 1996, the city selected its first class of applicants to advance, draw another class in October of that year and filled nine more classes over the next few years.

Each time drawing randomly from the pool of well-qualified candidates, in the last round it had exhausted that pool so it filled the remaining slots with qualified applicants.

Beginning in March 1997, Crawford Smith and several other African-American applicants who scored in the qualified range and had not been hired as firefighters, filed charges of discrimination with the Equal Employment Opportunity Commission.

The EEOC issued right to sue letters and they filed this suit against the city, alleging as relevant here that the city's practice of selecting only those who scored 89 or above on the examination to advance in the hiring process caused a disparate impact on African-Americans in violation of Title VII of the Civil Rights Act of 1964.

The District Court certified a class, petitioners here consisting of the 6000 plus African-Americans who scored in the qualified range but had not been hired.

The city sought summary judgment asserting that the class member's claims were time barred because they had not filed EEOC charges within 300 days of when their claims accrued which the city claimed was when the city scored the examinations and announced the results in January 1996.

The District Court denied that motion and after a bench trial, it ruled for petitioners awarding back pay and ordering the city to hire 132 class members reflecting the number it would have hired but for its cut off score.

The Seventh Circuit reversed holding that petitioner's claims were time barred.

We granted certiorari and now reverse.

Before filing a Title VII, suit a plaintiff must first file a timely EEOC charge.

All agree that petitioner’s charges were due within 300 days “after the alleged unlawful employment practice occurred" that's the language in the statute.

Aside from the first round of selection in May of 1996 which everyone agrees is off the table, no one disputes that the conduct petitioners challenge mainly the selection of firefighting candidates on the basis of the rankings announced after the 1995 tests occurred within the charging period.

The question is not whether petitioners claim concerning that conduct is timely but whether that claim can be brought at all, for the reasons set forth in our opinion we conclude that it can, the key provision 42 USC Section 2000e-2k1ai, I'll call it, the statute, states in pertinent part that “an unlawful employment practice based on disparate impact is established under this subchapter only if a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex or national origin”.

Petitioners claim satisfies this requirement, the term employment practice clearly encompasses the conduct petitioners challenge namely the exclusion of passing applicants who scored below 89, when selecting those with advanced and the city used which is the statutory language, used that practice in each round of selection and petitioners alleged that this exclusion caused a disparate impact whether they prove those elements is not before us, what matters is that their allegations stated a cognizable claim.

The city argues that the only unlawful employment practice here was its creation in January 1996 of the list of eligible applicants.

It concedes that, that action was unlawful and in light of the findings of the Court below but claims that, that cannot be the basis for liability now because no timely charge challenging it was filed within 300 days and since the city claims the exclusion of petitioners in the subsequent rounds of selection followed inevitably from the adoption of the 89 point cutoff score no new violations could have occurred.

This is the line of reasoning adopted by the Seventh Circuit, we do not agree with it.

The city is correct that if the adoption of the cut off score in 1996 gave rise to a freestanding claim of discrimination, petitioners waited too long to bring such a claim but it does not follow that no new violation could occur when the city implemented that decision down the road.

If petitioners could prove the elements of a disparate impact claim based on the implementation of the cut off, they could prevail.

The city argues that a line of our cases beginning with the United Air Lines versus Evans forbids liability for the later consequences of an earlier violation of Title VII that is beyond the limitations period but all those cases -- but all of those cases established is that a Title VII plaintiff must show a present violation inside the limitations period.

In the disparate treatment cases the city cites discriminatory intent existed at the time of the earlier violation but did not exist when the consequences of that earlier violation, here the application of the announced test results were felt.

For disparate impact claims such as this one however, discriminatory intent is not required.

The uses of the test that allegedly had discriminatory impact occurred within the 300 day charging period and that was all what was required.

The Seventh Circuit thought otherwise reasoning that disparate impact liability was designed as an alternative means to establish deliberate discrimination but even if both theories aim at the same evil, it does not follow that their reach is coextensive.

The city in its amici argue that our interpretation will yield practical problems, employers they stress will face, disparate impact suits for practices they have used for years.

In reality both readings of the statute produced puzzling results.

The consequence of the city’s approach would be that once nobody has challenged the initial test, you could and even though it has disparate impact you can use it forever.

More importantly however our task is not to determine which reading produces the least mischief but only to give effect to the law Congress enacted with whatever mischiefs it may contain.

The city argues that the District Court's judgment must be amended because it ordered a relief pertaining to the first round of selection in May of 96 which is indisputably outside the charging period, petitioners do not object to a remand to resolve this issue so we leave it to the Seventh Circuit to address.

The judgment of the Court of Appeals is reversed.

Our opinion is unanimous.