Will it Expand the Statute of Limitations Period in Filing Employment Discrimination Matters?
Under the Equal Employment Opportunities section of the Civil Rights Act of 1964, more commonly known as “Title VII,” an employee must generally file a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) within 180 days of the alleged unlawful employment practice being challenged.1 The time period to file a charge of discrimination is extended to 300 days if the employment practice occurs in a state with an agency that shares the investigatory work with the EEOC.2 In Florida, the Florida Commission on Human Rights (“FCHR”), and other county agencies, share work with the EEOC in conducting the investigations.3
Recently, in Lewis v. City of Chicago,4 the United States Supreme Court unanimously concluded that a group of African-American firefighter applicants had timely filed a charge for discrimination against the City of Chicago.5 In January 1996, the City of Chicago announced the results of a July 1995 written examination administered to approximately 26,000 applicants who were seeking to serve in the Chicago Fire Department.6 At the same time, the City issued a press release stating that “it would begin drawing randomly from the top tier scorers, i.e., those who scored 89 or above (out of 100), whom the City called ‘well qualified.’”7 However, a score of 65 or greater was considered passing, wherein the City rated those applicants who scored between 65 and 88 as “qualified.” Those applicants who were rated as “qualified” were subsequently notified that due to the number of “well qualified” applicants, it was unlikely that they would be contacted for further processing.8
On May 16, 1996, and on ten additional dates spanning a six-year period, the City ran a lottery to select applicants from the “well qualified” scorers of the July 1995 exam. During the final round of selections, the City exhausted the pool of “well qualified” applicants and for the first and only time, selected applicants from those rated as “qualified” to fill the remaining slots.9 On March 31, 1997, some 430 days after the City’s January 1996 announcement, Crawford M. Smith, an African- American applicant who scored in the “qualified” range, filed a charge of discrimination with the EEOC. Subsequently, five other individuals followed suit. On July 28, 1998, the EEOC issued all six individuals “right-to-sue” letters. Several months later, the individuals filed a civil action against the City alleging that its practice of only selecting “well qualified” applicants caused a disparate impact on African-Americans in violation of Title VII.10
Following the District Court’s class-certification, which consisted of more than 6,000 African-American applicants who fell within the “qualified” range, the City moved for summary judgment. The City asserted that the applicants had failed to file charges with the EEOC within the required 300 days after their claim had accrued. The motion was denied by the District Court, which reasoned that the City’s ongoing use of the 1995 test results constituted a continuing violation of Title VII. On appeal, the Seventh Circuit held that the EEOC charge was not timely filed, as the only discriminatory act was the sorting of the scored into the “well qualified,” “qualified” and “not qualified” categories. The Seventh Circuit further held that the eleven subsequent hiring decisions were immaterial because the hiring of only “well qualified” applicants was “‘the automatic consequence of the test scores, rather than the product of a fresh act of discrimination.”11
In reversing the Seventh Circuit’s decision, the U.S. Supreme Court held that each of the eleven times the City selected a class of applicants from those who tested in the “well qualified” range, the City “used” a practice that produced a disparate impact. The Court’s reasoning however, was not premised on the “continuing violations” doctrine, a theory which would treat the adoption and application of the cutoff score as a single, ongoing wrong.12 Moreover, the Court has previously rejected the “continuing violations” doctrine, finding that “unlawful employment practices” include “numerous discrete acts, holding that “[t]here is simply no indication that the term ‘practice’ converts related discrete acts into a single unlawful practice for the purposes of timely filing.”13 Rather, the Court focused on whether the City only used the discriminatory practice when it first announced the results and created the list of applicants, or whether the City used the discriminatory practice each of the eleven times it selected applicants from the list to fill open positions.14
The Court held that the City created a disparate-impact each time it selected applicants from the “well qualified” pool, and thus, the plaintiffs had timely filed a disparate-impact claim. The Court’s holding allows for a plaintiff who did not timely file a charge challenging the implementation of a practice to timely assert a charge for disparate-impact based upon the employer’s subsequent application of that practice if that party properly alleges the elements of a disparate-impact claim.15 Specifically, the Court notes that a Title VII employee must show a “present violation” within the statute of limitations period.
Consequently, an employer who regularly uses a practice implemented years prior may now be subject to new disparate-impact suits.16 In addition, the Court’s holding in Lewis may potentially subject employers to charges of discrimination filed outside the statute of limitations period of 300 days if an employee can show that the employer discriminated against the employee each time the employer made a decision based upon that practice. In that regard, pursuant to Title VII, the employee must show a “present violation” within the statute of limitations period.
Nonetheless, an argument can be made that the Court’s holding in Lewis is limited to those discrimination claims, such as disparate-impact, which do not require proof of discriminatory intent.17 Specifically, the Court noted the common requirement that the complaining party show discriminatory intent within the statute of limitations period. Stated differently, the employee must show the present effects of present discrimination and not the present effects of past discrimination outside the statute of limitations period.18 Where there is no requirement for discriminatory intent, a party can show a “present violation” of past discriminatory intent.
Although the full scope and reach of the Supreme Court’s holding in Lewis is presently unknown, employers should continuously review and revise their day to day employment practices and policies in order to avoid potential future claims, despite those claims appearing on their face to be filed outside the statute of limitations period.
1 42 U.S.C. § 2000e-5(e)(1).
3 § 760.03, Fla. Stat. (2010); § 760.04, Fla. Stat. (2010).
4 Lewis v. City of Chicago, Illinois, __ U.S. __, 130 S.Ct. 2191 (2010).
5 Id. at 2200
6 Id. at 2195.
8 Id. at 2196.
11 Id. quoting Lewis v. City of Chicago, Illinois, 528 F.3d 488, 491 (7th Cir. 2008)
12 Id. at 2200.
13 National R.R. Passenger Corp. v, Morgan, 536 U.S. 101, 111 (2002); 42 U.S.C. § 2000e- 6(a); 42 U.S.C. § 2000e-2.
14 Lewis, 130 S.Ct. at 2199.
15 Id. at 2199-2200.
17 See e.g. Malone v. Lockheed Martin Corp., 2010 WL 2541176, n. 9 (1st Cir. June 25, 2010) (declining to extend the scope of Lewis beyond the context of disparate-impact matters.).
18 Lewis, 130 S.Ct. at 2199-2200.