Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 C 5596-Joan B. Gottschall, Judge.
The opinion of the court was delivered by: Posner, Circuit Judge.
Before EASTERBROOK, Chief Judge, and BAUER and POSNER, Circuit Judges.
In 1995, the City of Chicago administered a new written test to 26,000 applicants for jobs as firefighters. After grading the tests, the City placed the applicants in three categories, based on their scores: "well qualified," "qualified," and "not qualified." The plaintiffs (and the members of their class) are black applicants who were placed in the "qualified" category. Applicants were told the test results within days after January 26, 1996, when notices of the results were mailed to all the applicants. On that day the mayor had announced that the test scores were in, but that "after all our efforts to improve diversity [including racial], these test results are disappointing." There were no names in his public announcement.
The notices stated that applicants in the qualified category were unlikely to be hired because of the large number whose scores had placed them in the "well qualified" category, but that the applicants rated "qualified" would remain on the eligible list (since they had passed the test) for as long as the list was used. In fact, as the media reported the next day, the City expected to hire only about 600 of the 1,782 applicants in the "well qualified" category in the next three years, implying that no one in the "qualified" category would be hired.
The suit, now entering its second decade, charges that the test had a disparate impact on the black applicants (that is, disproportionately classified them as "qualified" rather than "well qualified") and was not a valid test of aptitude for firefighting. If these things are true, the basing of hiring decisions on the test violated Title VII of the Civil Rights Act of 1964. After protracted proceedings, the district judge ruled in favor of the plaintiffs and decreed injunctive relief.
The City argues that the suit is untimely. The plaintiffs were required, as a prerequisite to being allowed to sue, to file a charge with the EEOC within 300 days after their claim accrued. 42 U.S.C. § 2000e-5(e)(1); Stepney v. Naperville School District 203, 392 F.3d 236 (7th Cir. 2004). They filed their charge on March 21, 1997, which was 420 days after the date on which notice of the results of the test had been sent them and probably 417 to 419 days after they received the notice. But it was within 300 days of the City's beginning to hire applicants from the "well qualified" list, and the district judge ruled that the suit was therefore timely because each time the City hired applicants in the "well qualified" group as determined on the basis of the January 1996 test results it committed a fresh violation of Title VII that may have harmed "qualified" applicants.
The plaintiffs acknowledge that in a "disparate treatment" case, that is, a case of intentional discrimination, the charging period begins when the discriminatory decision is made, e.g., Ledbetter v. Goodyear Tire & Rubber Co., 127 S.Ct. 2162, 2168, 2172 (2007); Lorance v. AT & T Technologies, Inc., 490 U.S. 900, 910-11 (1989); Delaware State College v. Ricks, 449 U.S. 250 (1980); Huels v. Exxon Coal USA, Inc., 121 F.3d 1047, 1051 (7th Cir. 1997); Cox v. City of Memphis, 230 F.3d 199, 204-05 (6th Cir. 2000), rather than when it is executed. We have held that if the plaintiff does not learn of the decision until later, the limitations period begins to run then. Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990); see also Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385-86 and n. 5 (3d Cir. 1994). But Hamilton v. 1st Source Bank, 928 F.2d 86, 87-88 (4th Cir. 1990) (en banc), is to the contrary, and the question was left open by the Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co., supra, 127 S.Ct. at 2177 n. 10. It is of no moment in this case.
In the Ricks casea college denied a faculty member tenure but offered him a "terminal" one-year contract, which he accepted. The Supreme Court held that the statute of limitations began to run from the denial of tenure rather than from the plaintiff's termination at the end of the one-year period, since that termination was the automatic consequence of the fact that he had only a one-year contract, rather than being the consequence of some fresh act of discrimination. It is the same here. The hiring only of applicants classified "well qualified" was the automatic consequence of the test scores rather than the product of a fresh act of discrimination.
The plaintiffs do not quarrel with the proposition that "well qualified" applicants should be hired ahead of those who are merely "qualified." They argue that the test that sorted applicants into those categories was discriminatory. That discrimination was complete when the tests were scored and, especially in light of the mayor's public comment about them, was discovered when the applicants learned the results. It's not as if the City had divided applicants into "a white branch" and "a Negro branch" and fixed a higher qualifying score for the latter; for then a refusal to hire a black who scored higher than a white but below the qualifying score for blacks would be an unmediated act of discrimination. See Bazemore v. Friday, 478 U.S. 385 (1986) (per curiam); Anderson v. Zubieta, 180 F.3d 329, 335-36 (D.C. Cir. 1999); Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 346 (4th Cir. 1994). The refusal to hire would not be due, even in the first instance, to the policy of basing hiring on test scores, since, by hypothesis, some blacks would have had higher scores than some whites yet, purely because of the racial division, would not have been hired. This case is different because "well qualified" is not a racial category, though its racial composition may have been influenced by a discriminatory decision taken earlier.
In Beavers v. American Cast Iron Pipe Co., 975 F.2d 792, 796-800 (11th Cir. 1992), on which the plaintiffs heavily rely, the employer limited insurance coverage to employees' children who lived with their employee parent, and the charge was that this discriminated against male employees.
The plaintiffs sued long after the policy was adopted but within 180 days (the limitations period applicable to them) of the denial of their claim for dependent coverage, and this was held to be timely because the allegedly discriminatory policy was the sole cause of the denial; there was no intervening neutral act, as in this case.
The distinction is a fine one (and it is arguable on which side of it the facts of Beavers fell) but it is the distinction that the Supreme Court has drawn. The plaintiffs argue that it does not apply to a disparate-impact case, but we cannot think why not. The difference between the two types of discrimination case is not fundamental. Disparate-impact analysis, much like the McDonnell Douglas method of establishing a prima facie case, involves the use of circumstantial evidence to create an inference of discrimination. "The concept of disparate impact was developed for the purpose of identifying discriminatory situations where, through inertia or insensitivity, companies were following policies that gratuitously-need-lessly-although not necessarily deliberately, excluded black or female workers from equal employment opportunities. Often these were policies that had been adopted originally for discriminatory reasons and had not been changed when the employer ceased deliberately discriminating-if he had; for another way of looking at the disparate impact approach is that it is primarily intended to lighten the plaintiff's heavy burden of proving intentional discrimination after employers learned to cover their tracks." Finnegan v. Trans World Airlines, Inc., 967 F.2d 1161, 1164 (7th Cir. 1992) (citations omitted). So if a test or other method of screening applicants for employment bears more heavily on one protected group than on another, the burden shifts to the employer to show that the method is a rational method of selecting employees.
42 U.S.C. § 2000e-2(k); see Allen v. City of Chicago, 351 F.3d 306, 311-12 (7th Cir. 2003); El v. Southeastern Pennsylvania Transportation Authority, 479 F.3d 232, 240-41 (3d Cir. 2007); Meacham v. Knolls Atomic Power Laboratory, 461 F.3d 134, 139 (2d Cir. 2006). If he cannot show this, his continuing to use the test suggests ...