Artis alleges two separate discrimination issues, each of which has been brought under both Title VII and § 1981. He first complains of discrimination in the decision as to who received Poreba training. And he separately alleges discrimination in the recall of two white machinists with inferior seniority. We consecutively evaluate each issue, with individual discussion respecting Title VII and § 1981.
I. Discrimination in Training
A. Title VII
The Supreme Court's holding in Lorance v. AT & T Technologies, Inc., 490 U.S. 900, 109 S. Ct. 2261, 104 L. Ed. 2d 961 (1989), compels dismissal of Artis' Title VII claim respecting alleged discriminatory training. Lorance evaluated the limitations period respecting the discrimination claims created by an intentionally discriminatory seniority system. The Court held that the limitations period begins to run not at the point where the impact becomes most obvious but, rather, at the time that the system is adopted.
Lorance implicitly requires satisfaction of three separate prongs before dismissal is considered appropriate. First, the original action about which the plaintiff complains must be outside the limitations period. Second, the defendant must demonstrate that the plaintiff knew or should have known, at the time of the original action, that he or she had suffered, or would suffer, "concrete" harm. And third, the defendant must demonstrate that the plaintiff knew or should have known, at the time of the original action, that it was discriminatory.
Neither side disputes that the alleged failure to train was outside the relevant limitations period. We conclude, however, that material issues of fact pertain to Artis' knowledge and therefore it cannot be conclusively determined that the limitations period began to run when Artis failed to receive Poreba training. Those issues of fact concern whether he knew or should have known of the requisite concrete harm and whether he knew or should have known that his failure to receive training was motivated by race. Lorance, therefore, cannot compel dismissal at this time.
Lorance made clear that while more "painful" harm may well occur at a later date, the limitations period begins to run when the plaintiff suffers "concrete harm." 109 S. Ct. at 2266. By effect, the AT & T seniority system there at issue put women who had exercised their plant-wide seniority to become testers at risk of demotion. Id. The limitations period therefore began to run the day of its adoption because those women knew or reasonably should have known of the system's discriminatory impact. See Lorance v. AT & T Technologies, Inc., 827 F.2d 163, 167 n.3 (7th Cir. 1987) ("the affidavits that the plaintiffs submitted to the district court conclusively prove that the plaintiffs were aware that they had forfeited their plant-wide seniority on the day they became subject to the Tester Concept").
That knowledge element explains one of the central disputes between the majority and the dissent. Justice Marshall, in dissent, contends that "AT&T's new seniority system was designed to have a long-range discriminatory impact, hurting women employees as a group but, as of the time of its inception, only theoretically hurting particular women employees." Lorance, 109 S. Ct. at 2272 (Marshall, Jr., dissenting) (emphasis added). Contrast that description with Justice Scalia's conclusion that the women suffered "concrete harm" the day the "employer provide[d] a patently less desirable seniority guarantee than what the law requires." 109 S. Ct. at 2266 n. 3 (emphasis added). Further, the plaintiffs in Delaware State College v. Ricks, 449 U.S. 250, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980), and United Air Lines v. Evans, 431 U.S. 553, 52 L. Ed. 2d 571, 97 S. Ct. 1885 (1977), also knew at the outset that they could expect to be harmed. See Ricks, 449 U.S. at 260 (plaintiff teacher denied tenure); Evans, 431 U.S. at 554 (plaintiff woman forced to resign because of her marriage).
We conclude that material facts remain as to whether Artis knew or should have known that his lack of Poreba training constituted "concrete harm". As such, the limitations period cannot run from the day he allegedly was discriminatorily denied training. Lorance certainly imposes a burden on potential plaintiffs to anticipate the consequences of present actions, but defendants would have us go further and limit the inquiry solely as to whether "concrete harm" was suffered. We think that misreads Lorance.
Whether Artis knew or should have known that his lack of Poreba training constituted "concrete harm," is ripe for resolution by the trier of fact:
It is also unclear whether plaintiff was aware that he had been harmed by defendant's alleged failure to train him since such an action may well have been perceived by plaintiff as maintenance of the status quo rather than loss of employment rights.
Artis v. United States Industry, et al., 1988 U.S. Dist. LEXIS 9411, No. 85 C 10116, slip op. at (August 23, 1988). Further, even if Artis knew he suffered "concrete harm," material facts remain as to whether he knew or should have known that the denial of training was racially motivated.
We await further guidance on the broader question of Lorance's application beyond seniority disputes. In one sense, the Court decided the rather general "value judgment concerning the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale [claims]'". 109 S. Ct. at 2269, quoting Ricks, 449 U.S. at 260. In another, the court evaluated the distinctly more specific "considerations underlying the 'special treatment' accorded to seniority systems" under Title VII. 109 S. Ct. at 2269, invoking Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 81, 53 L. Ed. 2d 113, 97 S. Ct. 2264 (1977). That "special treatment" "strikes a balance between the interests of those protected against discrimination by Title VII and those who work -- perhaps many years -- in reliance upon the validity of a facially lawful seniority system." Lorance, 109 S. Ct. at 2269.
We need not resolve these broader questions because the foregoing analysis makes clear that Lorance does not govern Artis' particular allegations. Invocation of Lorance in other circumstances will no doubt require evaluation of the broader questions of applicability. We leave that inquiry for another day and/or another court.
Separately, plaintiff submits that his training allegations purportedly constitute a disparate treatment, not a disparate impact claim. In such circumstances, Lorance could be interpreted to provide a different limitations period, one that employs a "continuing violation" theory. Respecting disparate impact claims, the clock begins to run at the time of "concrete harm." 109 S. Ct. at 2266 n.3. But respecting disparate treatment claims, Lorance asseses the limitations period considerably differently:
With a facially neutral system the discriminatory act occurs only at the time of adoption, for each application is non-discriminatory (seniority accrues for men and women on an identical basis). But a facially discriminatory system (e.g., one that assigns men twice the seniority that women receive for the same amount of time served) by definition discriminates each time it is applied.