In the

United States Court of Appeals

For the Seventh Circuit

No. 07-2052

ARTHUR L. LEWIS, JR., et al.,

Plaintiffs-Appellees,

v.

CITY OF CHICAGO, 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

ARGUED MARCH 29, 2011—DECIDED MAY 13, 2011

Before EASTERBROOK, Chief Judge, and BAUER and

POSNER, Circuit Judges.

EASTERBROOK, Chief Judge. In 1995 the City of Chicago

gave a written examination for positions in its Fire Department. 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. LEXIS 42544 (N.D. Ill. Mar. 22, 2005). Later it

awarded relief that included the hiring of 132 class members and damages based on the loss-of-a-chance approach. 2007 U.S. Dist. LEXIS 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 whenever 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 preserved 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 argument to explore them.

The City preserved its position on both issues. Its

initial appellate brief contested the district judge’s conclusion 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 plaintiffs’ urging, had treated all waves of hiring alike, the

City did not need to make separate arguments concerning 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 proceedings 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 plaintiffs’ challenge; there was no difference between contesting the list as a whole (plaintiffs’ actual strategy) and

contesting each use of the list (the approach appropriate 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 wellqualified 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 plaintiffs are entitled to the natural inference that all classes

were alike.

If the City had hired in rank order, as many civilservice 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 applicants, it might have been easier for the employer to
6 No. 07-2052

justify the practice. Perhaps it would have been “consistent 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 discrimination 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 establish 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 discrimination 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 discriminatory 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 employer’s requirement that applicants possess highschool 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-schooldiploma requirement had been used to produce an unlawfully discriminatory outcome for a particular category

of jobs, not that the requirement itself was “unlawful”

in all circumstances. Whether a practice has been adequately 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