(Slip Opinion) OCTOBER TERM, 2009 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

LEWIS ET AL. v. CITY OF CHICAGO, ILLINOIS 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE SEVENTH CIRCUIT 

No. 08–974. Argued February 22, 2010—Decided May 24, 2010 

In 1995, respondent the City of Chicago gave a written examination to

applicants seeking firefighter positions. In January 1996, the City

announced it would draw candidates randomly from a list of applicants who scored at least 89 out of 100 points on the examination,

whom it designated as “well qualified.” It informed those who scored 

below 65 that they had failed and would not be considered further. It 

informed applicants who scored between 65 and 88, whom it designated as “qualified,” that it was unlikely they would be called for further processing but that the City would keep them on the eligibility

list for as long as that list was used. That May, the City selected its

first class of applicants to advance, and it repeated this process multiple times over the next six years. Beginning in March 1997, several

African-American applicants who scored in the “qualified” range but 

had not been hired filed discrimination charges with the Equal Employment Opportunity Commission (EEOC) and received right-to-sue 

letters. They then filed suit, alleging (as relevant here) that the

City’s practice of selecting only applicants who scored 89 or above

had a disparate impact on African-Americans in violation of Title VII 

of the Civil Rights Act of 1964, see 42 U. S. C. §2000e–2(k)(1)(A)(i).

The District Court certified a class—petitioners here—of AfricanAmericans who scored in the “qualified” range but were not hired. 

The court denied the City’s summary judgment motion, rejecting its

claim that petitioners had failed to file EEOC charges within 300

days “after the unlawful employment practice occurred,” §2000e–

5(e)(1), and finding instead that the City’s “ongoing reliance” on the 

1995 test results constituted a continuing Title VII violation. The 

litigation then proceeded, and petitioners prevailed on the merits.

The Seventh Circuit reversed the judgment in their favor, holding 
2 LEWIS v. CHICAGO 

Syllabus 

that the suit was untimely because the earliest EEOC charge was 

filed more than 300 days after the only discriminatory act—sorting

the scores into the “well qualified,” “qualified,” and “not qualified”

categories. The later hiring decisions, the Seventh Circuit held, were 

an automatic consequence of the test scores, not new discriminatory 

acts. 

Held: A plaintiff who does not file a timely charge challenging the adoption of a practice may assert a disparate-impact claim in a timely

charge challenging the employer’s later application of that practice as

long as he alleges each of the elements of a disparate-impact claim.

Pp. 4–11.

(a) Determining whether petitioners’ charges were timely requires

“identify[ing] precisely the ‘unlawful employment practice’ of which” 

they complain. Delaware State College v. Ricks, 449 U. S. 250, 257. 

With the exception of the first selection round, all agree that the challenged practice here—the City’s selection of firefighter hires on the 

basis announced in 1996—occurred within the charging period. 

Thus, the question is not whether a claim predicated on that conduct 

is timely, but whether the practice thus defined can be the basis for a 

disparate-impact claim at all. It can. A Title VII plaintiff establishes 

a prima facie claim by showing that the employer “uses a particular

employment practice that causes a disparate impact” on one of the

prohibited bases. §2000e–2(k). The term “employment practice”

clearly encompasses the conduct at issue: exclusion of passing applicants who scored below 89 when selecting those who would advance. 

The City “use[d]” that practice each time it filled a new class of firefighters, and petitioners allege that doing so caused a disparate impact. It is irrelevant that subsection (k) does not address “accrual” of 

disparate-impact claims, since the issue here is not when the claims

accrued but whether the claims stated a violation. They did. 

Whether petitioners proved a violation is not before the Court. 

Pp. 4–7.

(b) The City argues that the only actionable discrimination occurred in 1996 when it used the test results to create the hiring list,

which it concedes was unlawful. It may be true that the City’s adoption in 1996 of the cutoff score gave rise to a freestanding disparateimpact claim. If so, because no timely charge was filed, the City is 

now “entitled to treat that past act as lawful,” United Air Lines, Inc. 

v. Evans, 431 U. S. 553, 558. But it does not follow that no new violation occurred—and no new claims could arise—when the City later

implemented the 1996 decision. Evans and later cases the City cites 

establish only that a Title VII plaintiff must show a “present violation” within the limitations period. For disparate-treatment claims—

which require discriminatory intent—the plaintiff must demonstrate 
Cite as: 560 U. S. ____ (2010) 3 

Syllabus 

deliberate discrimination within the limitations period. But no such 

demonstration is needed for claims, such as this one, that do not require discriminatory intent. Cf., e.g., Ledbetter v. Goodyear Tire & 

Rubber Co., 550 U. S. 618, 640. Contrary to the Seventh Circuit’s

reasoning, even if both types of claims take aim at prohibited discrimination, it does not follow that their reach is coextensive. Pp. 7– 

10. 

(c) The City and its amici warn that this reading will result in a

host of practical problems for employers and employees alike. The 

Court, however, must give effect to the law Congress enacted, not assess the consequences of each approach and adopt the one that produces the least mischief. Pp. 10–11.

(d) It is left to the Seventh Circuit to determine whether the judgment must be modified to the extent that the District Court awarded 

relief based on the first round of hiring, which occurred outside the 

charging period even for the earliest EEOC charge. P. 11. 

528 F. 3d 488, reversed and remanded. 

SCALIA, J., delivered the opinion for a unanimous Court. 
_________________ 

_________________ 

Cite as: 560 U. S. ____ (2010) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 08–974 

ARTHUR L. LEWIS, JR., ET AL., PETITIONERS v. CITY 

OF CHICAGO, ILLINOIS 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SEVENTH CIRCUIT 

[May 24, 2010] 

JUSTICE SCALIA delivered the opinion of the Court. 

Title VII of the Civil Rights Act of 1964 prohibits employers from using employment practices that cause a 

disparate impact on the basis of race (among other bases).

42 U. S. C. §2000e–2(k)(1)(A)(i). It also requires plaintiffs, 

before beginning a federal lawsuit, to file a timely charge 

of discrimination with the Equal Employment Opportunity Commission (EEOC). §2000e–5(e)(1). We consider 

whether a plaintiff who does not file a timely charge challenging the adoption of a practice—here, an employer’s 

decision to exclude employment applicants who did not 

achieve a certain score on an examination—may assert a

disparate-impact claim in a timely charge challenging the

employer’s later application of that practice. 

I 

In July 1995, the City of Chicago administered a written

examination to over 26,000 applicants seeking to serve in 

the Chicago Fire Department. After scoring the examinations, the City reported the results. It announced in a 

January 26, 1996, press release that it would begin drawing randomly from the top tier of scorers, i.e., those who 
2 LEWIS v. CHICAGO 

Opinion of the Court 

scored 89 or above (out of 100), whom the City called “well

qualified.” Those drawn from this group would proceed to

the next phase—a physical-abilities test, background 

check, medical examination, and drug test—and if they 

cleared those hurdles would be hired as candidate firefighters. Those who scored below 65, on the other hand, 

learned by letters sent the same day that they had failed

the test. Each was told he had not achieved a passing 

score, would no longer be considered for a firefighter 

position, and would not be contacted again about the 

examination. 

The applicants in-between—those who scored between 

65 and 88, whom the City called “qualified”1—were notified that they had passed the examination but that, based 

on the City’s projected hiring needs and the number of 

“well-qualified” applicants, it was not likely they would be

called for further processing. The individual notices 

added, however, that because it was not possible to predict 

how many applicants would be hired in the next few years,

each “qualified” applicant’s name would be kept on the 

eligibility list maintained by the Department of Personnel 

for as long as that list was used. Eleven days later, the

City officially adopted an “Eligible List” reflecting the

breakdown described above. 

On May 16, 1996, the City selected its first class of

applicants to advance to the next stage. It selected a 

second on October 1, 1996, and repeated the process nine 

more times over the next six years. As it had announced, 

in each round the City drew randomly from among those 

who scored in the “well-qualified” range on the 1995 test.

In the last round it exhausted that pool, so it filled the 

—————— 

1Certain paramedics who scored between 65 and 88 were deemed

“well qualified” pursuant to a collective-bargaining agreement, and

certain veterans in the “qualified” range had 5 points added to their

scores and therefore became “well qualified.” 
Cite as: 560 U. S. ____ (2010) 3 

Opinion of the Court 

remaining slots with “qualified” candidates instead.

On March 31, 1997, Crawford M. Smith, an AfricanAmerican applicant who scored in the “qualified” range

and had not been hired as a candidate firefighter, filed a

charge of discrimination with the EEOC. Five others 

followed suit, and on July 28, 1998, the EEOC issued all 

six of them right-to-sue letters. Two months later, they

filed this civil action against the City, alleging (as relevant

here) that its practice of selecting for advancement only 

applicants who scored 89 or above caused a disparate

impact on African-Americans in violation of Title VII. The 

District Court certified a class—petitioners here— 

consisting of the more than 6,000 African-Americans who

scored in the “qualified” range on the 1995 examination 

but had not been hired.2 

The City sought summary judgment on the ground that

petitioners had failed to file EEOC charges within 300 

days after their claims accrued. See §2000e–5(e)(1). The 

District Court denied the motion, concluding that the

City’s “ongoing reliance” on the 1995 test results constituted a “continuing violation” of Title VII. App. to Pet. for 

Cert. 45a. The City stipulated that the 89-point cutoff had 

a “severe disparate impact against African Americans,” 

Final Pretrial Order, Record, Doc. 223, Schedule A, p. 2,

but argued that its cutoff score was justified by business

necessity. After an 8-day bench trial, the District Court 

ruled for petitioners, rejecting the City’s businessnecessity defense. It ordered the City to hire 132 randomly selected members of the class (reflecting the number of African-Americans the Court found would have been 

hired but for the City’s practices) and awarded backpay to

be divided among the remaining class members.

The Seventh Circuit reversed. 528 F. 3d 488 (2008). It 

—————— 

2 In addition to the class members, the African American Fire Fighters League of Chicago, Inc., also joined the suit as a plaintiff. 
4 LEWIS v. CHICAGO 

Opinion of the Court 

held that petitioners’ suit was untimely because the earliest EEOC charge was filed more than 300 days after the

only discriminatory act: sorting the scores into the “wellqualified,” “qualified,” and “not-qualified” categories. The 

hiring decisions down the line were immaterial, it reasoned, because “[t]he 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.” Id., at 491. We granted certiorari. 557 U. S. __ 

(2009). 

II 

A 

Before beginning a Title VII suit, a plaintiff must first 

file a timely EEOC charge. In this case, petitioners’ 

charges were due within 300 days “after the alleged

unlawful employment practice occurred.” §2000e–5(e)(1).3 

Determining whether a plaintiff’s charge is timely thus

requires “identify[ing] precisely the ‘unlawful employment

practice’ of which he complains.” Delaware State College 

v. Ricks, 449 U. S. 250, 257 (1980). Petitioners here challenge the City’s practice of picking only those who had 

scored 89 or above on the 1995 examination when it later 

chose applicants to advance. Setting aside the first round

of selection in May 1996, which all agree is beyond the cutoff, no one disputes that the conduct petitioners challenge 

occurred within the charging period.4 The real question, 

—————— 

3All agree that a 300-day deadline applies to petitioners’ charges 

pursuant to 29 CFR §§1601.13(a)(4), (b)(1), 1601.80 (2009). Cf. EEOC 

v. Commercial Office Products Co., 486 U. S. 107, 112, 114–122 (1988). 4Because the District Court certified petitioners as a class, and because a court may award class-wide relief even to unnamed class 

members who have not filed EEOC charges, see Franks v. Bowman 

Transp. Co., 424 U. S. 747, 771 (1976), petitioners assert and the City

does not dispute that the date of the earliest EEOC charge filed by a

named plaintiff—that filed by Smith on March 31, 1997—controls the

timeliness of the class’s claims. We assume without deciding that this 
Cite as: 560 U. S. ____ (2010) 5 

Opinion of the Court 

then, is not whether a claim predicated on that conduct is 

timely, but whether the practice thus defined can be the

basis for a disparate-impact claim at all. 

We conclude that it can. As originally enacted, Title VII

did not expressly prohibit employment practices that

cause a disparate impact. That enactment made it an 

“unlawful employment practice” for an employer “to fail or

refuse to hire or to discharge any individual, or otherwise

to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex,

or national origin,” §2000e–2(a)(1), or “to limit, segregate, 

or classify his employees or applicants for employment in 

any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely 

affect his status as an employee, because of” any of the

same reasons, §2000e–2(a)(2). In Griggs v. Duke Power 

Co., 401 U. S. 424, 431 (1971), we interpreted the latter 

provision to “proscrib[e] not only overt discrimination but

also practices that are fair in form, but discriminatory in

operation.”

Two decades later, Congress codified the requirements

of the “disparate impact” claims Griggs had recognized. 

Pub. L. 102–166, §105, 105 Stat. 1074, 42 U. S. C. §2000e–

2(k). That provision states: 

“(1)(A) An unlawful employment practice based on disparate impact is established under this subchapter

only if—

“(i) a complaining party demonstrates that a respondent uses a particular employment practice

that causes a disparate impact on the basis of race,

color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged

practice is job related for the position in question 

—————— 

is correct. 
6 LEWIS v. CHICAGO 

Opinion of the Court 

and consistent with business necessity . . . .” 

Thus, a plaintiff establishes a prima facie disparateimpact claim by showing that the employer “uses a particular employment practice that causes a disparate impact” on one of the prohibited bases. Ibid. (emphasis 

added). See Ricci v. DeStefano, 557 U. S. ___, ___ (2009) 

(slip op., at 18).

Petitioners’ claim satisfies that requirement. Title VII 

does not define “employment practice,” but we think it

clear that the term encompasses the conduct of which

petitioners complain: the exclusion of passing applicants 

who scored below 89 (until the supply of scores 89 or above

was exhausted) when selecting those who would advance.

The City “use[d]” that practice in each round of selection. 

Although the City had adopted the eligibility list (embodying the score cutoffs) earlier and announced its intention

to draw from that list, it made use of the practice of excluding those who scored 88 or below each time it filled a 

new class of firefighters. Petitioners alleged that this

exclusion caused a disparate impact. Whether they adequately proved that is not before us. What matters is that 

their allegations, based on the City’s actual implementation of its policy, stated a cognizable claim. 

The City argues that subsection (k) is inapposite because it does not address “accrual” of disparate-impact

claims. Section 2000e–5(e)(1), it says, specifies when the 

time to file a charge starts running. That is true but 

irrelevant. Aside from the first round of selection in May

1996 (which all agree is beyond the 300-day charging

period), the acts petitioners challenge—the City’s use of its

cutoff score in selecting candidates—occurred within the 

charging period. Accordingly, no one disputes that if 

petitioners could bring new claims based on those acts,

their claims were timely. The issue, in other words, is not 

when petitioners’ claims accrued, but whether they could 
Cite as: 560 U. S. ____ (2010) 7 

Opinion of the Court 

accrue at all. 

The City responds that subsection (k) does not answer 

that question either; that it speaks, as its title indicates, 

only to the plaintiff’s “[b]urden of proof in disparate impact cases,” not to the elements of disparate-impact

claims, which the City says are be found in §2000e–2(a)(2). 

That is incorrect. Subsection (k) does indeed address the 

burden of proof—not just who bears it, however, but also

what it consists of. It does set forth the essential ingredients of a disparate-impact claim: It says that a claim “is 

established” if an employer “uses” an “employment practice” that “causes a disparate impact” on one of the enumerated bases. §2000e–2(k)(1)(A)(i). That it also sets 

forth a business-necessity defense employers may raise,

§2000e–2(k)(1)(A)(i), and explains how plaintiffs may 

prevail despite that defense, §2000e–2(k)(1)(A)(ii), is irrelevant. Unless and until the defendant pleads and

proves a business-necessity defense, the plaintiff wins 

simply by showing the stated elements. 

B 

Notwithstanding the text of §2000e–2(k)(1)(A)(i) and 

petitioners’ description of the practice they claim was 

unlawful, the City argues that the unlawful employment

practice here was something else entirely. The only actionable discrimination, it argues, occurred in 1996 when

it “used the examination results to create the hiring eligibility list, limited hiring to the ‘well qualified’ classification, and notified petitioners.” Brief for Respondent 23.

That initial decision, it concedes, was unlawful. But because no timely charge challenged the decision, that cannot now be the basis for liability. And because, the City

claims, the exclusion of petitioners when selecting classes

of firefighters followed inevitably from the earlier decision

to adopt the cutoff score, no new violations could have 

occurred. The Seventh Circuit adopted the same analysis. 
8 LEWIS v. CHICAGO 

Opinion of the Court 

See 528 F. 3d, at 490–491. 

The City’s premise is sound, but its conclusion does not 

follow. It may be true that the City’s January 1996 decision to adopt the cutoff score (and to create a list of the 

applicants above it) gave rise to a freestanding disparateimpact claim. Cf. Connecticut v. Teal, 457 U. S. 440, 445– 

451 (1982). If that is so, the City is correct that since no

timely charge was filed attacking it, the City is now “entitled to treat that past act as lawful.” United Air Lines, 

Inc. v. Evans, 431 U. S. 553, 558 (1977). But it does not 

follow that no new violation occurred—and no new claims 

could arise—when the City implemented that decision

down the road. If petitioners could prove that the City

“use[d]” the “practice” that “causes a disparate impact,”

they could prevail.

The City, like the Seventh Circuit, see 528 F. 3d, at

490–491, insists that Evans and a line of cases following it 

require a different result. See also Ledbetter v. Goodyear 

Tire & Rubber Co., 550 U. S. 618 (2007); Lorance v. AT&T 

Technologies, Inc., 490 U. S. 900 (1989); Ricks, 449 U. S. 

250. Those cases, we are told, stand for the proposition

that present effects of prior actions cannot lead to Title VII 

liability.

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; 
Cite as: 560 U. S. ____ (2010) 9 

Opinion of the Court 

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 discrimination 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. 

The Seventh Circuit resisted this conclusion, reasoning 

that the difference between disparate-treatment and 

disparate-impact claims is only superficial. Both take aim 

at the same evil—discrimination on a prohibited basis—

but simply seek to establish it by different means. 528 

F. 3d, at 491–492. Disparate-impact liability, the Court of

Appeals explained, “‘is primarily intended to lighten the

plaintiff’s heavy burden of proving intentional discrimination after employers learned to cover their tracks.’” Id., at 

492 (quoting Finnegan v. Trans World Airlines, Inc., 967 

F. 2d 1161, 1164 (CA7 1992)). But even if the two theories 

were directed at the same evil, it would not follow that 

their reach is therefore coextensive. If the effect of applying Title VII’s text is that some claims that would be

doomed under one theory will survive under the other, 

that is the product of the law Congress has written. It is 

not for us to rewrite the statute so that it covers only what

we think is necessary to achieve what we think Congress 

really intended. See Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 79–80 (1998). 

The City also argues that, even if petitioners could have 

proved a present disparate-impact violation, they never 

did so under the proper test. The parties litigated the 

merits—and the City stipulated that the cutoff score

caused disparate impact—after the District Court adopted 
10 LEWIS v. CHICAGO 

Opinion of the Court 

petitioners’ “continuing violation” theory. App. to Pet. for 

Cert. 45a. That theory, which petitioners have since 

abandoned, treated the adoption and application of the 

cutoff score as a single, ongoing wrong. As a result, the 

City says, “petitioners never proved, or even attempted to

prove, that use of the [eligibility] list had disparate impact,” Brief for Respondent 32 (emphasis added), since the

theory they advanced did not require them to do so. If the 

Court of Appeals determines that the argument has been 

preserved it may be available on remand. But it has no 

bearing here. The only question presented to us is 

whether the claim petitioners brought is cognizable.

Because we conclude that it is, our inquiry is at an end. 

C 

The City and its amici warn that our reading will result 

in a host of practical problems for employers and employees alike. Employers may face new disparate-impact suits 

for practices they have used regularly for years. Evidence 

essential to their business-necessity defenses might be 

unavailable (or in the case of witnesses’ memories, unreliable) by the time the later suits are brought. And affected 

employees and prospective employees may not even know

they have claims if they are unaware the employer is still 

applying the disputed practice. 

Truth to tell, however, both readings of the statute

produce puzzling results. Under the City’s reading, if an 

employer adopts an unlawful practice and no timely

charge is brought, it can continue using the practice indefinitely, with impunity, despite ongoing disparate impact. Equitable tolling or estoppel may allow some affected employees or applicants to sue, but many others 

will be left out in the cold. Moreover, the City’s reading

may induce plaintiffs aware of the danger of delay to file 

charges upon the announcement of a hiring practice,

before they have any basis for believing it will produce a 
Cite as: 560 U. S. ____ (2010) 11 

Opinion of the Court 

disparate impact.

In all events, it is not our task to assess the consequences of each approach and adopt the one that produces 

the least mischief. Our charge is to give effect to the law 

Congress enacted. By enacting §2000e–2(k)(1)(A)(i), Congress allowed claims to be brought against an employer 

who uses a practice that causes disparate impact, whatever the employer’s motives and whether or not he has 

employed the same practice in the past. If that effect was 

unintended, it is a problem for Congress, not one that 

federal courts can fix. 

III 

The City asserts that one aspect of the District Court’s 

judgment still must be changed. The first round of hiring

firefighters occurred outside the charging period even for 

the earliest EEOC charge. Yet the District Court, applying the continuing-violation theory, awarded relief based

on those acts. Petitioners do not disagree, and they do not 

oppose the City’s request for a remand to resolve this 

issue. We therefore leave it to the Seventh Circuit to 

determine, to the extent that point was properly preserved, whether the judgment must be modified in light of 

our decision. 

* * * 

The judgment of the Court of Appeals is reversed, and

the case is remanded for further proceedings consistent

with this opinion. 

It is so ordered.