On Monday, the U.S. Supreme Court decided Lewis v. Chicago, an employment discrimination case. The facts were oddly familiar. In January 1996, the City of Chicago offered a written exam to applicants for its firefighter positions. Anyone scoring between 89 and 100 on the test were placed on the “well qualified” list, and the city would fill its open positions by selecting candidates randomly from this list. Anyone between 65 and 89 were deemed “qualified” yet unlikely to get a call from the city. Anyone under 65 failed the test.
Long story short: As the city began to select from the “well qualified” list, African American applicants from the “qualified” list argued that the selection process had a disparate impact in violation of Title VII. The district court agreed and ruled in favor of the plaintiffs. The Seventh Circuit reversed, on the ground that the plaintiffs were required to file a charge with the EEOC within 300 days from the time the discriminatory act took place yet failed to do so. According to the panel, the discriminatory act was the sorting of all applicants into the three pools on the basis of their test scores. In the words of Judge Posner, writing for the three-judge panel, “[t]hat 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.”
This is right out of Groundhog Day.
Anyone familiar with the recent Ricci v. Stefano or Ledbetter v. Goodyear Tire & Rubber could take an educated guess about the outcome in Lewis. You would only need to know two things. First, the justices are strategic political actors who seek, whenever possible, to further their own policy objectives. And second, the conservative wing of the Court is neither receptive to broad and expansive readings of employment discrimination law, nor is it welcoming to claims brought by plaintiffs of color. These two facts are clearly on display in Ricci and Ledbetter. This would mean that in Lewis, the Supreme Court, in a 5-4 decision, would uphold the lower court decision and rule the claims by the black plaintiffs as untimely.
And yet, the Court did exactly the opposite, ruling unanimously for the black plaintiffs. How to explain it? How to explain such an opinion authored by Justice Scalia and joined by Justices Thomas, Kennedy, Alito and the Chief Justice (and the rest of the justices, of course)?
I don’t have a definitive answer. But I have some ideas.
