In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2052
A RTHUR L. L EWIS, JR., et al.,
Plaintiffs-Appellees,
v.
C ITY OF C HICAGO, ILLINOIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 5596—Joan B. Gottschall, Judge.
On Remand from the
Supreme Court of the United States
A RGUED M ARCH 29, 2011—D ECIDED M AY 13, 2011
Before E ASTERBROOK, Chief Judge, and B AUER and
P OSNER, Circuit Judges.
E ASTERBROOK, Chief Judge. In 1995 the City of Chicago
gave a written examination for positions in its Fire De-
partment. Applicants who scored 89 and up were rated
highly qualified, while those who scored 64 and below
2 No. 07-2052
were rated not qualified. Those in between were rated
qualified but were told in January 1996 that they were
unlikely to be hired. (Applicants also were evaluated for
physical skills, criminal records, and other attributes, but
those do not matter to this litigation.) From May 1996
through November 2001, the City hired 11 groups of
applicants from the well-qualified pool. Each time it
chose at random from those who had scored 89 or better;
it did not follow the common civil-service practice of
hiring in rank order from a list.
In March 1997 a person in the qualified pool filed with
the EEOC a charge of discrimination. This charge, the
first to be filed, contended that the cutoff of 89 had a
disparate impact on African-American applicants. After
receiving right-to-sue letters from the agency, several
applicants filed this class action in 1998. The district court
concluded that the first charge was timely despite the
fact that it came more than 300 days after members of
the qualified pool learned that they were unlikely to be
hired. The City conceded that the cutoff score created a
disparate impact but contended that the selection
criteria were “job related for the position in question
and consistent with business necessity”. 42 U.S.C.
§2000e–2(k)(1)(A)(i). After a bench trial, the district court
rejected the City’s business-necessity defense. 2005 U.S.
Dist. L EXIS 42544 (N.D. Ill. Mar. 22, 2005). Later it
awarded relief that included the hiring of 132 class mem-
bers and damages based on the loss-of-a-chance ap-
proach. 2007 U.S. Dist. L EXIS 24378 (N.D. Ill. Mar. 20, 2007).
See Doll v. Brown, 75 F.3d 1200 (7th Cir. 1996).
No. 07-2052 3
Chicago’s appeal raised only one question: Whether the
March 1997 charge of discrimination was timely. We
found that it was not, because it came more than 300 days
after applicants in the qualified pool learned not only
that the exam had a disparate impact but also that they
were unlikely to be hired. 528 F.3d 488 (7th Cir. 2008).
The Supreme Court reversed in turn, holding that in
disparate-impact litigation the time starts anew when-
ever the employer uses a test (or other practice) to make
hiring decisions. 130 S. Ct. 2191 (2010). This made the
March 1997 charge timely with respect to each wave of
hiring other than the first.
The Justices identified two subjects potentially requiring
attention on remand. One is whether Chicago has pre-
served its contention that the charge of discrimination
was untimely with respect to the first hiring class. The
other is whether Chicago has preserved an argument
that the plaintiffs failed to prove that any given use of
the cutoff score had a disparate impact—and, if yes,
whether that argument carries the day. We asked the
parties to file briefs on those topics and held oral argu-
ment to explore them.
The City preserved its position on both issues. Its
initial appellate brief contested the district judge’s con-
clusion that the first charge was timely; that subsumed
a challenge to the ruling that the charge was timely
with respect to the first batch of hires in particular. The
district judge used a continuing-violation approach
that lumped all hires together. After our initial decision,
plaintiffs abandoned that approach, which was incom-
4 No. 07-2052
patible with National Railroad Passenger Corp. v. Morgan,
536 U.S. 101 (2002). Because the district court, at plain-
tiffs’ urging, had treated all waves of hiring alike, the
City did not need to make separate arguments con-
cerning each wave to benefit from the Supreme Court’s
conclusion that each “use” of a practice must be analyzed
separately. And if, by treating all hires alike in the district
court, plaintiffs have failed to establish that any given use
of the hiring criteria created a disparate impact, then the
City is entitled to judgment in its favor. Litigants need
not anticipate, on pain of forfeiture, arguments never
made until late in the litigation (in this case, until pro-
ceedings had reached the Supreme Court).
This means that the judgment must be reversed to the
extent that the district court granted relief arising from
the first set of hires from the list. The charge came too
late to contest these employment decisions, as the
Supreme Court stated. 130 S. Ct. at 2198. This is the
only relief to which the City is entitled, however.
Although it has preserved a contention that plaintiffs
failed to establish a disparate impact in any particular
use of the list, that contention is substantively unavailing.
Recall that the City conceded in the district court that
the cutoff score of 89 had a disparate impact on
minority applicants. The only issue contested at trial was
whether the test and its cutoff score were job-related
and consistent with business necessity. Because Chicago
selected at random from the well-qualified group (those
with scores of 89 and up), each batch of hires created
the same disparate impact as the overall list. This means
No. 07-2052 5
that each use of the test was equally vulnerable to plain-
tiffs’ challenge; there was no difference between con-
testing the list as a whole (plaintiffs’ actual strategy) and
contesting each use of the list (the approach appro-
priate under the Supreme Court’s decision).
We grant the possibility that, by chance, one batch or
another would not create a disparate impact; indeed, it is
possible that chance would produce a batch in which
minority applicants predominated. But the City does not
say that this occurred, and the law of large numbers is
against it. Moreover, because the City hired from the well-
qualified pool until it was exhausted, the 10 properly
challenged “uses” as a whole matched the pool and
had the same disparate impact. If one or more of the 10
contested hiring classes departed materially from what
a random draw would be expected to produce, the
City should have pointed this out; it never did, so plain-
tiffs are entitled to the natural inference that all classes
were alike.
If the City had hired in rank order, as many civil-
service employers do, things would have been different.
Suppose applicants who got 100 had been hired in
May 1996, those who got 99 four months later, those
with scores of 98 four months after that, and so on. Then
it would have been essential for plaintiffs and the
district court to evaluate each use of the list separately.
For it is possible that some of these uses would not
have produced a disparate impact—and, if any given
band of scores had an adverse effect on minority appli-
cants, it might have been easier for the employer to
6 No. 07-2052
justify the practice. Perhaps it would have been “con-
sistent with business necessity” to hire those who
scored 100 ahead of those who scored 85, even if it was
not necessary to hire those who scored 90 ahead of
those who scored 88. But Chicago did not hire new
firefighters in rank order. Everyone who scored 89 and
up was treated alike; everyone who scored 65 to 88 was
treated alike. The City conceded that this difference
created a disparate impact. The district judge found that
the cutoff at 89 was not justified, and the City did not
appeal that conclusion. The City’s concession plus the
district court’s uncontested findings establish all that
is required for the plaintiffs to prevail on the merits.
Not so, Chicago contends. It observes that the first
charge was filed more than 300 days after the decision
to adopt the cutoff score of 89. This means, the City
maintains, that it was entitled to treat the highly
qualified pool (generated by applying the cutoff score
to the full list) as lawful. And if that pool was lawful,
then each use of it to hire a class of firefighters must
have been lawful, the argument concludes. The premise
is correct; delay in filing the charge meant that the
highly qualified pool is beyond legal challenge. The
Supreme Court said so, 130 S. Ct. at 2198–99, as our
2008 decision also had done. 528 F.3d at 490–91. But the
conclusion does not follow, because under the Supreme
Court’s analysis the question is not whether a list, test, or
criterion is lawful, but whether each use to which it is
put was justified under the criteria in §2000e–2(k)(1)(A)(i).
Relying on United Air Lines, Inc. v. Evans, 431 U.S. 553
(1977), and similar decisions, the City argued to the
No. 07-2052 7
Supreme Court that, if delay in filing a charge of discrimi-
nation entitles the employer to treat bygones as lawful,
then the current effects of these bygones must be lawful
too. Compare Ledbetter v. Goodyear Tire & Rubber Co., 550
U.S. 618 (2007), Lorance v. AT&T Technologies, Inc., 490 U.S.
900 (1989), and Delaware State College v. Ricks, 449 U.S. 250
(1980), with Bazemore v. Friday, 478 U.S. 385 (1986).
The Justices replied (130 S. Ct. at 2199):
We disagree. As relevant here, those cases estab-
lish only that a Title VII plaintiff must show a
“present violation” within the limitations period.
Evans, supra, at 558 (emphasis deleted). What that
requires depends on the claim asserted. For
disparate-treatment claims—and others for which
discriminatory intent is required—that means the
plaintiff must demonstrate deliberate discrimina-
tion within the limitations period. See Ledbetter,
supra, at 624–629; Lorance, supra, at 904–905; Ricks,
supra, at 256–258; Evans, supra, at 557–560; see
also Chardon v. Fernandez, 454 U.S. 6, 8 (1981) (per
curiam). But for claims that do not require dis-
criminatory intent, no such demonstration is
needed. Cf. Ledbetter, supra, at 640; Lorance, supra,
at 904, 908–909. Our opinions, it is true, described
the harms of which the unsuccessful plaintiffs
in those cases complained as “present effect[s]” of
past discrimination. Ledbetter, supra, at 628; see
also Lorance, supra, at 907; Chardon, supra, at 8;
Ricks, supra, at 258; Evans, supra, at 558. But the
reason they could not be the present effects of
present discrimination was that the charged dis-
8 No. 07-2052
crimination required proof of discriminatory
intent, which had not even been alleged. That
reasoning has no application when, as here, the
charge is disparate impact, which does not
require discriminatory intent.
In disparate-impact litigation the question is not
whether a given test or standard is lawful standing
alone, but whether its application has been adequately
justified. In other words, it is the application (“use”) of a
test or standard that Title VII places at issue. To say that
the highly qualified pool was lawfully composed does
not imply that it was lawful for the employer to hire
exclusively from that pool.
Griggs v. Duke Power Co., 401 U.S. 424 (1971), the first
disparate-impact case, did not ask whether the em-
ployer’s requirement that applicants possess high-
school diplomas—a requirement that disproportionately
disqualified minority applicants—was “lawful.” Plainly
it was; no rule of law proscribes race-neutral educational
prerequisites. Nor did the Court ask whether a charge
of discrimination had been filed within 300 days after
Duke Power first rejected an applicant who had not
finished twelfth grade. The Court asked whether the
employer had justified using a requirement that filtered
out minority applicants. It concluded that the high-school-
diploma requirement had been used to produce an unlaw-
fully discriminatory outcome for a particular category
of jobs, not that the requirement itself was “unlawful”
in all circumstances. Whether a practice has been ade-
quately justified is the question that §2000e–2(k)(1)(A)(i),
No. 07-2052 9
which codifies Griggs, posed in this litigation. This is
why it does not matter whether the City is entitled to
treat the well-qualified pool as lawful in the abstract.
The judgment of the district court is affirmed, except
with respect to the remedy based on the first batch of
hires. The case is remanded with instructions to modify
the remedy to eliminate any relief based on the hires of
May 1996.
5-13-11