1 (Slip Opin i o n) OCTOBER T ERM, 20 09 Sy llabu s N O TE : Wh er e it i s feas ibl e , a s y llab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s y ll abu s con s titu tes n o p a r t of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r . Se e United Statesv. Detroit Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

# SUPREME CO URT O F THE UNI TED STATES
Sy llabu s 

### LEWIS ET AL


### . v . CITY OF C H ICA GO, ILLIN O IS CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVE NT H CIRCUIT No. 08–9 74. Ar g u ed Febr uar y22, 2010— Dec i ded M a y 24, 201 0 In199 5, r e spo n den tth e Cit yof Ch ic ag o gav ea wr itten ex amin ationt o

applic an t s see k in gfir e figh terposition s. I nJan u a r y19 96, th e C i ty a nnoun ced it would dra w c a ndida t es randomly from a list of appli

cants who scored at least 89 out of 10 0 poin ts onth e ex amin ation , whom it de sig n ated a s “wellqualif ie d.” Itinformed those who scored below 65 th a tth eyh a d failed an d wou l d not be c o n s ider ed fu r t h e r. It in for m ed appl ic an ts wh o sc or ed between65 an d 88, w h om it de sig

nated as “qua l i fied,” that it was unlikely they wo uld be called for fur

ther processing bu t that the City would keep them on the eligibilit y l i s tf o r a s l o n ga s t h a tl i s tw a s u s e d

. T h a tM a y , t h eC i t ys e l e c t e di t s fir s t c l ass of a pplic ants to a dv a nc e, and itrepeated this pr oc ess mul

tiple t i mes ov e rth e n e x tsix y e ar s. Begi n n in ginM a rc h1 997, sev e r a l African-American applicants who sc ored in the “qualif ie d” range but had not been hir e d filed dis c r i mination c h ar g e s with the Equal E m ploy ment Oppor t unityCommiss ion (EEOC) and r e c e iv ed r i gh t-to-sue letters. They then filed suit, alle ging (a s releva nt he re) tha tthe City’s practice of selecting only applic an ts wh o sc or ed 89 orabov e had a disparat e impact on African-Am ericans in violation of Title VII of th e Civ il R i gh ts Ac t of 1 964, see 4 2 U

. S. C. §2000e –2(k)(1)(A)(i). The District Court certifie d a class—pe titioners here—of AfricanAmericans who scored inthe “qualifie d” r a ng e but were not hir e d. The c o ur t denied the Ci ty ’ s summar yjudg ment motion, r ejec t ingits c l aim tha tpe titioner s had failed to file EEOC charg e s within 30 0 days “after the unlawful employme n t pr ac tic eoc c u rr ed,” §200 0e– 5(e)(1), and finding instead that th e City’s “ongoing reliance” on the 199 5 te str e s u lts c o n s ti tu t e d a c o n t inuing Title VII viola t ion. The litigation then proceeded , and petitioners preva iled on the mer i ts. The S e vent h Circuitrevers ed t h e j u dgm e ntin t h eir f avor, holding2 LEWIS v. CHICAGO Sy llabu s tha tthe s u it wa s untimely b e ca us e the earliest EEOC chargewas filed mor eth an300 day s afterth e on l ydisc r i min a tor yac t—sor t in g the scores into the “we ll q u alified,” “ q ua lified, ” an d “n ot qu alif ied” ca t e gories

. Th e la t e r hiring decis i ons , t h e S e vent h Circu itheld, were an automa tic c o nsequenc e of the tes tsc or es, not new disc r i minator y ac ts. Held: A plaintiff who does n o t file a ti mely charge challenging the ado p tionof a pr actic emayasse r ta dispar ate

- impac tc l ai m ina timely charge challenging the employer’s later ap plicationof th at pr ac tic e as long as he all e ges each of the elem en ts o f a disp ar ate-i m pac tc l ai m. Pp. 4–11.

(a) Deter m iningwhetherpetitioner s’ c h ar g e s wer e time lyr e quir es “identify[ing] precisely the ‘unlawfu l employment practice’ of which” theyc o mplain. Delaware St ate Collegev. Ricks , 449 U. S. 250, 25 7. With the exce ption of the first sele ction round, a ll a g ree t h a tt h e cha l

lenged pra c t i ce here—t he Cit y ’s s e lect ion of firefight e r hires on t h e bas is an n o u n c ed in1996—oc c u r r e d wi th inth e c h a r gi n gper i od. Thus , the q u e s tion is not w h ether a claim predicated on that conduct is timely , b u t whether the p r a c tice thus defined ca n b ethe b a s is for a dis p a r at e-im pa ctcla i m at al l

. It ca n. A Title VII pla i ntiff es tab lis he s a pr ima f a c i e c l aim bysh ow in gth at th e employ er“u ses a par t ic u l ar employ ment p r ac tic ethat c a uses a di sparate impact” on one of the pr oh ibited ba ses. § 2 0 00e– 2 (k). The te r m“employ m ent pr ac tic e ” clea rly encom p a s s e s t h e conducta t is sue: exclusion of p a ss ing appli

cants who scored below 89 when se lecting those who would advance. The City “use[ d]” tha tpracti ce eachtime i tfille d anew class of fire

figh ter s , an d petition er s all e g eth at doin gso c a u s ed a d i spar a t e im

pa ct
. It is irreleva ntt h a ts u b s ec t i on (k) does notaddres s “ a ccrua l” of disparate-imp a ct claims, sin c e the i ssue her eis not when the c l aims a ccruedb u t whet hert h e cla i m s st a t ed aviola t ion. The ydid. Whether petitioners proved a viol at ionis notbefor ethe Court. Pp. 4–7.

(b) The City argues that the on ly actionable di scrimination oc

curred in 1996 when it used the testresult s t ocrea t e t h e hiring lis t , which it conce d es wa s unlawful. It ma y b etrue tha tthe City’s a d op tion in 1996 o f the cutoff score gav e r i se t o a fr eest a n d i n gdispar ate

impac tc l a i m. If so, bec a use no timelyc h ar g ewas filed , the Cityis now “entitled to tr eat that p a st ac t a s law f ul,” United Ai r Line s, In c. v. Evans , 431 U. S. 553, 558. Bu t it does n o t follow th at n on e w v i ola

t i on occu rred

— a n d no newcla i m s could a r is e—when t h e Cit yla t e r implemen tedt h e 1996 dec i si on . Evans a n d la t e r cas e s the Cit ycit e s establi s hon lyth at a Ti tle VII pl ain t iff mu st sh ow a “pr e sen tv i ola

tion” within the limit at ions p e riod

. Fordispar ate-tr ea tm ent c l aims— whic h r e qui r e disc r i minator yintent—the pla i ntiff mus tdemons trate3 Cite as: 56 0 U

. S. ____ (2010) Sy llabu s deliberate d i sc rimination within the limita t ions period. But no such demonstr at ion is neededfor c l aims, su c ha s t h i s o n e , t h a td on o tr e quir e disc r i minator yintent. Cf., e. g . , L e dbette rv. Goo d year Tire& Rub b er Co. , 5 50 U. S. 618, 640. Con t r a r yto th e Sev e n t hCir c u it’ s reasoning, eve nif both types of c l aims ta ke aim a tpr ohibited di s c r i mination, itdoes not fol l o wthat theirr e ac h is c oex tensiv e. Pp. 7– 10.

(c) TheCity and its amiciwarn that this reading will result in a host of practi cal problems f o r em ployers and employee s al ike. The Cour t, howev e r , must giv eeffec tto the l a w Cong r e ss enac ted, not as

sess the consequences of each appr oach and adopt the o n e that pro

du c e s th e least misc h i ef. Pp. 10–11.

(d) It is left to the Sev e nth Cir c u it to deter m ine whetherthe judg

ment mustbe modified to th e ex tent that t h e Distr i c tCo ur t awar ded relief b a s ed on t h e firs tround of hiring, which o ccu rre d out s ide t h e chargin gperio deven fo r the earlies tEEOC char ge. P. 11. 528 F. 3d 48 8, r e v e r s ed an d reman d ed.

S CALI A , J ., delivered the opin ion for a una ni mous Court._________________

_________________ 1 Cite as: 56 0 U

. S. ____ (2010) Opinion of theCourt
NOTIC E : Th is op i n ionis subjec t to f o rma lrevi si onbef o r e publicat ioninth e p r eli m in ary p rin t of th e U n it edS t at es R e p o rts
. R e ad ers ar e r e qu es ted to n o tif yth e R e p o r t e rof D e c i s i on s , Su p r em e C o u r t of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s . 

# SUPREME CO URT O F THE UNI TED STATES
No. 08–9 74 

### ART HU R L

. LEWIS, J R 

### ., ET AL 

### ., PETITIONERS v. CITY OF C H ICA GO, ILLIN O IS ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE SEVE NTH CIRCUI T [M ay24, 2010 ] 

### J USTICE 

### S CALIA 

### delivered the opini o n of the Co urt. Title VII of the Civil Rights Act of 1964 prohibits em

ployers from using employment practi ces that cause a disparate impact on the basis of race (among other bases). 42 U. S. C. §2000e–2(k)(1)(A)(i). I talso requires plaintiffs, before beginning a federal lawsui t, to file a timely charge of discrimination with the Equal Employment Oppo rtu

nity Comm ission (EEOC). §2000e–5(e)(1). We consider whether a plaintiff who does not f ile atimelycharge chal

lenging the adoptionof a practice—here, an employer ’s decision toexclude employment applicants who did not achieve a certain score on an examination—may assert a disparate-impact claim in atimely charge challenging the employer’s later appli c a t ionof that practice. I In July 199 5, the City of Chicago administered a writte n examination to over 2 6 ,000 ap plicants seeki n g to serve in the Chicago Fire Department. After scoring the examina

tions, the City reported the results. It announced in a January 26 , 1996, pres s release that it would begin draw

ing randomly from thetop tier of scorers, i.e. , thosewho2 LEWIS v. CHICAGO Opinion of theCourt 

### 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 fire

fighters. Those who s c ored below 65, on the other hand, learned by letters sent the same day tha tth ey had failed the test. Each was told he hadnot achieved a passing score, would no longer be considered for a firefighter position, a n d would not be contacted a g ain about th e examination. The applicants in-between—t hose who scored between 65 and 88, whom the City called “qualified” 1 

### —were noti

fied that th ey had passed the examination b u t that, bas ed on the Cit y ’s projecte d hiring needs and the number of “well-qualified” applicants, it was not likely they would be called for further pro c essing. The individual notices added, however, that because itw a s not poss ib le to predi c t how many applicants would be hired in the n e xt few years, each “qualified” applicant’s name would be kept on th e eligibility l i s t maintained by the Department of Personnel for as long as that list was used. Eleven da ys later, the City officially adopted an “E ligible List” reflecting th e breakdown described above. On May 1 6 , 1996, the City selected its first class o f applicants to advance to the next sta g e. It selected a second on October 1, 1996, and repeated the process nine more times over the ne xt six years

. As it had announced, in each round the City drew randomly from among those who scored in the “well-qualified” range on th e 1995 test. In the last round it exhausted that pool, so it filled the

——————

1 Cert a i n pa ram e dics who s c ored between 65 and 88 were deemed “well qualifie d” pursuant to a co llective-bargaining agreement, and certa i n vetera ns in the “q ua lified” ra nge ha d 5 points a dded to their scores and therefore be came “well qualified

. ”3 Cite as: 56 0 U

. S. ____ (2010) Opinion of theCourt 

### remaining slots with “qualified” candidates instead. On March 31, 1997, Crawford M. Smith, an African

American applicant who scoredin the “qualified” range and had no t been hired as a candidate firefighter, filed a charge of discrimination with the EEOC. Five othe rs followed su it, and on July 28, 1998, the EEOC issued all six of them right-to-su e lette rs. Two months later, they filed this civil action against the City, alleging (as relev ant here) that its practice of selecting for adva ncement only applicants who scored 89 or above caused a disparate impact on African-Am ericans in violation of Title VII. The DistrictC o urt cer t ified a cla ss—petitioners here— consisting of the more than 6,000 African-Am ericans who scored in the “qualified” ran g e on the 1995 examination but had not been hired. 2 

### The City sought summ ary judgment on the ground tha t petitioners had failed to file EEOC charge s within 300 days after their claims accrued. See §2000e–5(e)(1). T h e DistrictCo urt deniedthe motion, concluding tha tth e City’s “ongoing relian c e” on the 1995 test results cons ti

tuted a “continuing violation” of Title VII. App. to Pet. for Cert. 45a. The City sti p ulated that the 89-point cutoff ha d a “severe disparate impact agains t African Americans,” Final Pretrial Order, Record, Do c. 223, Sch e dule A, p. 2, but argued that its cutoff score was justifiedby busines s necessity. After an 8- day bench trial, the District Cour t ruled for petitioner s, rejecting the City’s business

necessity defense. It ordered the City to hire 132 ran

domly selected members of the class (reflecting the num

ber of African-Americans the Cour t found would have been hired but for the City’s practices) a n d awarded backpay to be divided among the remaining class members

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

——————

2 In addition to the c l ass me mber s, t h e Africa n Am erica nFire Fight

er s Leag u eof Ch ic ag o, Inc

. , also join ed th e su it as a pla i n t iff.4 LEWIS v. CHICAGO Opinion of theCourt 

### held that petitioners’ suit was untimely becau s e the earli

est EEOC charge was filed mo re than 300 days after the only discriminatory a ct: sortingt h e scores into the “we ll

qualified,” “qualified,” and “not-qualified” categories. The hiring decisions down the line were immaterial, it rea

soned, because “[t]he hiring only of applica n ts classified ‘well qualified’ was the automatic consequenc e of the tes t scores rather than the product of afresh act of discrimina

tion.” 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 EE OC c harge. Inthis case, petitioners’ charges we re 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 th e ‘unlawful employmen t practice’ of which he c o mplains.” Del a wareSta t e Colle ge v. Ricks , 449 U. S. 250, 257 (1980). Petitioner s here chal

lenge the City’s practice of pick i n g only those who h a d scored 89 or above on the 1995 ex amination when it lat e r chose applicants to advance. Setting aside the first round of selection in May 199 6, which allagree is beyond the cu t

off, no one disputes that th e cond uct petition ers challenge occurred wi thin the charging peri od. 4 

### The real question,

——————

3 All ag r ee th a ta 300-d a ydeadlin e applie s to petition e r s’ ch ar g e s pu r s u a n tto 29 CFR §§1 601 .13(a)(4), (b)(1 ), 1601.8 0 (20 09). Cf. EEO C v. Commercial Offic e Pro d u c ts Co. , 486 U. S. 107, 11 2, 11 4–1 22 (1 988). 4 Beca us e t h e Dis t rictCourtcert ified pet i t i oners a s acla s s , a n d b e ca us e acourt ma y a w a r d cla s s - wide relief even to unna med cla s s members who have not file d EEOC charges, see Franks v. Bowma n Transp . Co. , 424 U. S. 74 7, 771 (1 976), pe tition er s as ser t an d th e Ci ty does not di sp ute that the d a te of the earl iest EEOC charg efiled by a n a med pla i n t i ff—th at filed bySmi t honM a r c h31, 1997—c o n t r o ls t h e timelin e ss of t h e c l ass’ s c l ai ms. We assu me without dec i dingthat this5 Cite as: 56 0 U

. S. ____ (2010) Opinion of theCourt 

### then, is notwhether a claim predicated on that conduct i s timely , but whether th e practice thus defined can be the basis for a disparate-impact clai m at all

. We conclude that it ca n. As originally enacted, Title VII did not expressly prohibit employment practices tha t cause a disparate impact. That enactment made it an “unlawful employment practice” fo r an employer “to fail o r refuse to hire or to discharge any individual, or otherwise to discriminate against any indi vidual with r e spect to hi s compensation, terms, conditions, or privileges of empl oy ment, because of such individual’s race, color, religion, sex , or national origin,” §2000e–2(a)(1 ), or “to limit, segregate, or classify his employ ees or appli c ants for employment in any way which would deprive ortend to deprive any indi

vidual of e m ployment opportunities or other w ise adversely affect his status as an employee, because of” any of the same reasons, §2000 e–2(a)(2). In Griggsv. Duke Power Co. , 401 U. S. 424, 43 1 (1971), we interpreted the latter provision to “proscrib[e] not only overt discri mination but also practices that are fair in form , but discriminatory i n operation.” Two decades later, Congress codified the requirements of the “disparate imp a ct” claims Gri g

gs ha d recognize d

. Pub. L. 102–166, §105, 105 Stat. 1 074, 42 U. S. C. §2000e– 2(k). That provision states: “(1)(A) An u n lawful employment practice based on dis

parate impact is established under this su bchapter only if— “(i) a complaining party demonstrates that a re spondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religi o n, sex, or national origin and the re

spondent fails to demonstrate that the challenged practice is job related for the po sition in question

—————— is correct
.6 LEWIS v. CHICAGO Opinion of theCourt 

### and consistent with business necessity . . . .” Thus, a pl aintiff establishes a prima faci e disparate

impact claim by showing that the employer “ usesa par ticular employment practice that causes a disparate im

pact” on one of the prohibited bases. Ibi d

. (emphas is added). See Ricciv. DeS t efano , 557 U. S. _ __, ___ (200 9) (slip op., at 18). Petitioners’ claim satisfies that requirement. Title VII does not define “employment pra ctice,” but we think i t clear that the term encompasses the conduct of whic h petitioners complain: the exclusion of passing applicant s who scored below 89 (u ntil the sup p ly of score s 89 orabov e was exhausted) when selecting those who would advance. The City“u se[d]” that practice in each roundof selection. Although the City had adopted the eligibi lity list (embody ing the score cutoffs) earlier and announced its intention to draw fro m that list, it made use of the practice of ex

cluding tho s e who scored 88 or below each time it filled a new class of firefight e rs. Petiti oners alleged thatthi s exclusion caused a disparate impact. Whether they ade

quately proved that is not before u s . What m a tters is that their allegations, based on the City’s actual implementa

tion of its p o licy, stated a cognizable claim. The City argues that subsection(k) is ina p posite be

cause it do es not address “accru al” of disparate-impact claims. Section 2000e–5(e)(1), it says, specifies when th e time to file a charge starts runn ing. That is true but irrelevant. Aside from the first round of selection in May 1996 (which all agree is beyond the 300-day cha r gin g period), the acts petitioners challenge—the City’s use of its cutoff score in selecting candidate s —occurredwithin the charging period. Accordingly, n o one disp utes that if petitioners could bring new claims based on those acts, their claims were timely. The i ssu e, inother words, is not when peti tioners’ claims accrued , but wh eth e r theycou l d7 Cite as: 56 0 U

. S. ____ (2010) Opinion of theCourt 

### accrue at al l. The City responds that subsection (k) does not answer thatquestion either; that it spea ks, as its ti tle indicates, only to the plaintiff’s “[b]urden o f proof in disparate im

pact cases,” not to the elements of disparate-impac t claims, which the City says are be found in §2 000e–2(a)(2). That is incorrect. Subsection (k) does indeedaddress the burden of p r oof—not just who bea r s it, however, but als o what it consists of. It doesset forth the essential ingredi

ents of a disparate-impact claim: It says th at a claim “is established” if an employer “uses” an “employment prac

tice” that “causes a disparate impact” on one of the enu

merated bases. §2000 e–2(k)(1)(A)(i). That it also sets forth a bus iness-neces s ity de fense employers may raise, §2000e–2(k)(1)(A)(i), a n d explains how pla i ntiffs may prevail despite that defense, §2000e–2(k)(1)(A)(ii), is ir

relevant. Unless and until the defendant pleads and proves a business-nec e ssity defense, the plaintiff wins simply by showing the stated elem ents. B Notwithsta nding the text of §2000e–2(k)(1)(A)(i) an d petitioners’ description of the practice the yclaim was unlawful, the City argues that the unlawful employmen t practice here was something el seentirely. The only a c tionable dis crimination, it argues, occurred in1996 when it “used the examination results to create the hiring eligi

bility list, limited hiring to the ‘well qualifi e d’ classifica

tion, and notified petitioners.” Brief for Respondent 23

. That initial decision, itconcedes, was unlawful. But be

cause no timely charge challenged the decision, that ca n not now be the basis f o r liability. And because, the City claims, the exclusion of petitioners when selecting classes of firefighters followed inevit ably from the earlier decisio n to adopt th e cutoff score, no new violations could have occurred. The Seventh Circuit ado p ted the same analysis

.8 LEWIS v. CHICAGO Opinion of theCourt 

### See 528 F. 3d, at 490–491. The City’s premise is sound, but its conclusion does no t follow. It may be tru e that the City’s Janu ary 1996 de ci

sion to adopt the cuto ff score (and to create a list of t h e applicants above it) gave rise to afreestanding disparate

impact claim. Cf. Connecticutv. Teal , 457 U. S. 440, 445– 451 (1982). If that is so, the City is correct that since no timely charge was filed attackin g it, the City is now “enti

tled to treat that past act as lawful.” Uni t ed Air Lines , Inc. v. Eva n s , 431 U. S. 553, 558 (1977). But it does n o t follow that no new violation occurred—and no new claims could arise—when th e City implemented t hat decision down the road. If petitioners could prove that the City “use[d]” th e “practi ce” that “ c auses a disparate impact, ” they could prevail. The City, l i ke the Seventh Circuit, see 528 F. 3d, a t 490–491, insists that Evansand a line of cases following it require a di fferent result. See alsoLedbetterv. Goodyear Tire& Rub b er Co. , 550 U. S. 618 (2007); Lora ncev. AT &T Technologi e s , Inc. , 490 U. S. 900 (1989); Ricks , 449 U. S. 250. Thos e cases, we are told, st and for the proposition that present effects of prior a ctions cannot lead to Title VII liability. We disagree. As relevant here, those cases establish only that a Title VII plaintiff must show a “present viola

tion” within the limit ations period. Evans , supra , a t55 8 (emphasis deleted). What that requires depends on the claim asserted. For disparate-treatment claims—and others for which discriminatory intent is required—tha t means the plaintiff must demonstrate deliberate discri mi

nation within the limit a tions period. See Ledbetter , sup r a , at 624–629; Lorance , supra , at 90 4–905; Ricks , supra , a t 256–258; Evans , su pra , at 557–56 0; see also Chardonv. Fernand ez , 454 U. S. 6, 8 (1981) (pe r cu ria m )

. Bu t for claims that do not require di scriminatory intent, no such demonstration is ne eded. Cf. Le dbetter , su pra , at 640;Cite as: 56 0 U

. S. ____ (2010) 9 Opinion of theCourt 

### Lorance , su pra , at 904, 908–909. Our opinions, it is true, described the harms of which the unsuccessful plaintiffs in those cases complained as “pre sent effect[s]” of past dis

crimination. Ledbetter , supra , at 628; see also Lorance , supra , at 9 07; Chardon , supra , at 8; Ricks , supra , at 258; Evans , supr a , at 558. But the reason they co uld 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, whi c h does not require discriminatory intent. The Seventh Circuit r e sisted this conclusion, reasoning that the difference between disparate-tre atment and disparate-impact claims is only s u perficial. 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. Dis p arate-impact liability, the Court of Appeals explained, “ ‘is primarily intended to lighten the plaintiff’s heavy burde n of proving intentional discrimina

tion after employers learne d to cover their tr acks.’ ” Id. , at 492 (quoting Finnegan v. Trans World Airl i n es , Inc. , 9 67 F. 2d 1161, 1164 (CA7 1992)). But even if the two theories were direct ed at the same evil, itwould not follow that their reach is thereforecoextensive. If the eff e ct of apply

ing Title VII’s text is that some claims that would be doomed un der one theory will s u rvive under the other, that is the product of the law Con gress has written. It i s not for us to rewrite the statute so that it covers only wha t we think is necessary to ac hieve what we th ink Congress really intended. See Oncal ev. Sundowner Offshore Ser

vices, Inc. , 523 U. S. 75, 79–80 (1998). The City also argues t hat, even if petitioners could have proved a present disparate-im pact violation, they never did so under the proper test

. The parties litigated the merits—and the Citystipulated that the cutoff scor e caused disparate impact—after the District Court adopted10 LEWIS v. CHICAGO Opinion of theCourt 

### petitioners’ “continuing violation” theory. App. to Pet. for Cert. 45a. That theory, which petitioners have since abandoned, treated th e adoptionand application of the cutoff score as a singl e , ongoing wrong. As a result, the City says, “ p etitioners never prove d , or even attempted to prove, that useof the [eligibil ity] list had di sparate im

pact,” Brief for Respondent 32 (emphasis added), since the theory theyadvancedd i d not require them to do so. If th e Court of Appeals determines that the argume nt has been preserved it may be available onremand. 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 an d its ami c iwarn that o u r reading will result in a host of practical problems foremployers and employ

ees alik e. Employers may face new disparate

- impact suits for prac tice s they ha ve used regul a rly for years. E videnc e essential t o their bu siness-necessity defenses might be unavailable (or in the case of witnesses’ mem o ries, unreli

able) by the time the later suits ar e brought. And affecte d employees and prospective emplo y ees may not even k n o w they have claims if they are unaware the em ployer is still applying th e disputed practice. Truth to tell, however, both rea d ings of th e 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 in

definitely, with impu nity, de spite ongoing disparate im

pact. Equi table tollin g or estoppel may allow some af

fected employees ora p plicants 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 an nouncemen t of a hiring practice, before they have any basis for believing it will produce a11 Cite as: 56 0 U

. S. ____ (2010) Opinion of theCourt 

### disparate impact. In all events, it is not our task to assess the conse

quences of each approach and adopt the one that produces the least mischief. Our char ge is to give effect to the la w Congress enacted. By ena cting §2000e–2(k)(1)(A)(i), Con

gress allowed claims to be brought against an employer who uses apractice th at causes disparate impact, wha t

ever 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 f o r Congress, not one that federal courts can fix. III The City asserts that one aspect of the District Court ’ s judgment s t ill must be changed. The first round of hiring firefighters occur r ed o u tside the chargingpe riod even f o r the earliestEEOC cha r ge. Yet the District C o urt, apply

ing the continuing-violation theory, awarded relief based on those acts. Petitioners do not disagree, and they do not oppose the City’s req u est fo r a remand to resolve this issue. Wetherefore leave it tothe Seven t h Circuit to determine, to the extent that point was properly pr e served, whe t her the judgment mus tbe 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 orde red.