Supreme Court Applies Title VII Limitations Period to Employer’s Initial Announcement of Test Scores and Later Denials of Hire Based on Test Scores

By Ted Olsen

Remarkably, decades after the enactment of employment discrimination laws, litigation continues over how the limitations periods in those laws should be applied to assorted forms of adverse employment actions by employers. In Lewis v. Chicago, No. 08-974 (U.S. May 24, 2010), the U.S. Supreme Court considered whether a Title VII charge, claiming that a firefighter entrance examination used by a municipality had an unlawful disparate impact on African-American candidates, was timely filed with the Equal Employment Opportunity Commission. While the charge was not filed within 300 days of the employer's announcement of the eligible firefighter candidates based on its use of a cutoff score on the test, it was filed within 300 days of the employer's not hiring black candidates who ranked low on the list because of the test and cutoff score.

The Supreme Court acknowledged that the city's announcement of the eligible candidates might have been an adverse employment action, but added that "it does not follow that no new violation occurred" each time the city subsequently hired from the list.

Considering that the Supreme Court had previously ruled that a Title VII charge-filing period began to run when an employee was informed of the termination of his or her employment, not later, when the termination took effect, the decision in Lewis is somewhat surprising. When the list of eligible candidates was announced, low-ranking candidates were fully apprised that they would not likely be hired. The mere announcement should have triggered a charge-filing period (as the Supreme Court suggests). Waiting to file a charge until being passed over for hire, based on the list, would serve no purpose. It is possible that the Lewis decision is explained by the Court's recognition that the city, despite its stated intention to make job offers strictly based on rank on the eligibility list, might elect to deviate from the list, so as to prevent disparate impact liability, as the employer did in last Term's Ricci case. See, Ricci v. DeStefano, 129 S.Ct. 2658 (2009).

Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation.

	Contact Us Services Attorneys News and Events Publications About the Firm Inclusiveness Careers In the Media Events and Registration Press Releases Speaking Engagements Articles Client Advisories Subscriptions History Offices Pro Bono Interlaw Contact Us Culture Legal Opportunities Summer Associates Support Staff Publications Client Advisories Home > Publications > Client Advisories > View Supreme Court Applies Title VII Limitations Period to Employer’s Initial Announcement of Test Scores and Later Denials of Hire Based on Test Scores By Ted Olsen Remarkably, decades after the enactment of employment discrimination laws, litigation continues over how the limitations periods in those laws should be applied to assorted forms of adverse employment actions by employers. In Lewis v. Chicago, No. 08-974 (U.S. May 24, 2010), the U.S. Supreme Court considered whether a Title VII charge, claiming that a firefighter entrance examination used by a municipality had an unlawful disparate impact on African-American candidates, was timely filed with the Equal Employment Opportunity Commission. While the charge was not filed within 300 days of the employer's announcement of the eligible firefighter candidates based on its use of a cutoff score on the test, it was filed within 300 days of the employer's not hiring black candidates who ranked low on the list because of the test and cutoff score. The Supreme Court acknowledged that the city's announcement of the eligible candidates might have been an adverse employment action, but added that "it does not follow that no new violation occurred" each time the city subsequently hired from the list. Considering that the Supreme Court had previously ruled that a Title VII charge-filing period began to run when an employee was informed of the termination of his or her employment, not later, when the termination took effect, the decision in Lewis is somewhat surprising. When the list of eligible candidates was announced, low-ranking candidates were fully apprised that they would not likely be hired. The mere announcement should have triggered a charge-filing period (as the Supreme Court suggests). Waiting to file a charge until being passed over for hire, based on the list, would serve no purpose. It is possible that the Lewis decision is explained by the Court's recognition that the city, despite its stated intention to make job offers strictly based on rank on the eligibility list, might elect to deviate from the list, so as to prevent disparate impact liability, as the employer did in last Term's Ricci case. See, Ricci v. DeStefano, 129 S.Ct. 2658 (2009). Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation. ©2010 Sherman & Howard L.L.C. July 7, 2010 Copyright 2000-2010 Sherman & Howard L.L.C. All rights reserved. Privacy Policy \| Terms of Use