You have decided to apply to Lewis Law school

• You have all finished undergrad• You have all taken the LSAT• You have all provided a writing sample• Some of you took some time off to work; some of you are

coming straight from undergrad.• Look at the card given to you at the beginning of class. These

are your backgrounds and scores.

Lewis Law School

• Is ranked 70th in the country.

• It has a strong business law program.

• It has a 95% bar passage rate.

• 80% of graduates find jobs within 9 months of graduation.

• Lewis Law School accepts 200 students every year

GPA

• Lewis Law School considers GPAs to be a good indicator of a student’s ability to perform the required class work in law school.

• It accepts students with GPAs of 3.0 and above.

Work Experience

• Lewis Law School wants to create a diverse student body, and considers an applicant’s work experience important.

• Lewis Law School especially likes applicants who’s prior job experience involved working with legal or business issues.

Writing Samples

• Lewis Law School considers writing to be a fundamental skill for lawyers.

• Applicants must show some aptitude for persuasive writing in their writing sample.

LSAT

• You all took the LSAT within the past year.• The LSAT is scored between 120 and 180.• The average score on last year’s LSAT was 150.• Past experience indicates that students who scored below

150 on the LSAT were not able to cope with the rigors of Lewis Law School’s curriculum.

Your applications are being considered….

• Please look at your card. Decide whether or not you think you should be admitted into Lewis Law School…

Lewis Law School

• Lewis Law School received 5,000 applicants this year.

• Lewis’s admission people do not have the time or resources to consider all applicants.

Those of you with LSAT scores of 165 or above.

• Congratulations, Lewis Law School may be looking at the rest of your application. You will be selected at random to have the rest of your application considered.

• Those of you with scores of 164 to 150. It is unlikely Lewis will be considering your application any longer, however you have not been rejected yet.

• Those of you with scores below 150 have had your applications denied. Please consider other professions.

Discuss…

Lewis v. City of Chicago

Facts:

Chicago’s Fire Department gave a test to those who were interested in working for the Chicago’s FD. There were three ranges of scores:• Well qualified – 89% - 100%• Qualified – 65% - 88%• Unqualified – below 65%

• In 1996, the FD announced that it would randomly pull the candidates who scored in the “well qualified” range and informed those who “failed” that they would not be considered further for the job.

Facts Continued

The applicants who scored in the “QUALIFIED” range, were informed that it would be unlikely that they would be called for job processing.

• The next phase would be a physical abilities test.

• However, the FD informed them that they will keep their names on this list for as long as the list is used by the FD.

Facts Continued

• The FD department selected the first group of Firefighters to advance in May, 1996 and continued the same process over the course of six years.

• African-American applicants were upset and felt discriminated against because they qualified for the position based on their scores: between 65%-88%

• They filed suit under Title VII of the Civil Rights Act of 1964 after gaining permission from the EEOC.

• Their allegation was:– Because the City’s practice of choosing only the applicants at the top -89%-100%

for employment - there was a disparate effect on black applicants who were undoubtedly “qualified” for the position.

Brief Facts in Court

• City motioned for Summary judgment – arguing that the black applicants did not file their claim in a “timely” manner:• Suppose to file EEOC charges within 300 days after the alleged “unlawful employment

practice.”• Because they failed to do so, this case should be dismissed at this stage.

District Court – didn’t entertain that notion but held that the City’s testing practice was a CONTINUING TITLE VII VIOLATION.

7TH CIR. – reversed that decision. NO. There is a timing issue and because of that, we are looking at the “later test scores” and the City’s practice. Therefore, “the later hiring decisions … were an automatic consequence of the test scores, not new discriminatory acts.” Saying, there is not “continuing violation.”

Issue:

• The 7th Cir. said that – “a plaintiff who does not file a timely charge challenging the adopting 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.”

• First: to determine whether a claim is timely, you first have to identify the “unlawful employment practice.”

• Therefore, the issue at the Appellate level was not whether the claim based on the City’s conduct was timely; instead, it is whether the practice can be the basis for a disparate-impact claim at all.

Demographics of City/Department

During 2010 – while the case was pending in the Supreme Court:

Since 1995 entry level exam:• African-Americans fell from 22% to 18%• But blacks represent ~34% of the City’s population.

Newest class of recruits during this time which was set to graduate was:• 66% whites• 18% Hispanic• 13% black

Trial Court

• 2000: City of Chicago filed a motion for summary judgment based on the argument that the plaintiff’s claim was barred by the statute of limitations and should be dismissed.

• Court denied the city’s motion for summary judgment, saying that the ongoing reliance on the discriminatory test was a continuing violation and therefore within the statute of limitations

• 2005: The Court handed down a ruling holding the Chicago Fire Department’s hiring practice to be unlawful under Title VII of the Civil Rights Act of 1964

Trial Court Continued

• Court held that the evidence revealed– The 1995 test may not be a reliable measure of the four cognitive

abilities it was intended to measure– The 89 cut off score was a statistically meaningless benchmark– Even if the 1995 test could reliably measure what it was suppose to

measure, it could not distinguish between those who were qualified for the position of CFD firefighter and those who were not

– Less discriminatory, and equally convenient, selection strategies were available

Appellate Court

• The City of Chicago filed an appeal, arguing that the District Court should have granted the motion for summary judgment based on the statute of limitations

• 2008: The Appellate Court holds that the city of Chicago is correct because the City sent notice to applicants 420 days before the plaintiffs filed their lawsuit and the court determined that the statute of limitations began when notices were sent not when they began hiring people

Supreme Court

• 2009: Plaintiffs appeal to the Supreme Court• Holding: The term “employment practice” includes the

continued exclusion of applicants who scored between 65 and 88 on the city’s 1995 written exam

• Thus, the first selection round is excluded by statute of limitations but each subsequent round is a continuing discriminatory employment practice

Back to the Appellate Court

• The 7th District followed the Supreme Court’s ruling and upheld the decision of the Northern District of Illinois

• The first group of hires, in 1996 are beyond the statute of limitations but due to the continuing violations the plaintiffs maintain the victory on all subsequent hires.

Implementation

• The appellate court held on remand that the charge of discriminatory practices by Chicago’s FD was untimely but that later discriminatory acts to later hires were timely.

• Applying that decision, the District court’s order of relief to 132 candidates of the class was dropped to 111 class who must be hired.

Once, you’ve won, how do you deal with it?

Demographics of City/Department

• In 2010 the population of Chicago was 2,685,598• Of that population, 45% are white.• 32.9% are black• The graduating class of firefighters in March 2010 was 66%

white, 18% Hispanic, and 13% black.

Procedural Issues

• Adoption of a practice vs. application of that practice– The Fire Department adopted the practice of only considering

applicants who were in the “well qualified” group in January of 1996.

– The Fire Department applied that practice each of the subsequent 9 times it drew names from the “well qualified” list.

Why it matters

• The plaintiffs have 300 days after a violation of Title VII to file charges with the Equal Employment Opportunity Commission. (EEOC)

• The plaintiffs filed with the EEOC in March of 1997.– The applicants were split into “qualified” and “well qualified” in

January of 1996.– Applicants from the “well qualified” group were asked to continue

with their applications at 9 different times in the space of 6 years.

Plaintiff’s Argue:

• Each instance of the application of a practice that has a disparate impact is a separate violation of Title VII– Decision to divide the applicants into Qualified and Well Qualified– Each time the City chose applicants from the well qualified list.

City Argues

• The plaintiffs had 300 days to file discrimination charges. If no charges are filed within 300 days, the employer I “entitled to treat that past act as lawful.”

• The decision to split the applicants into “qualified” and “well qualified” was a violation of Title VII, but after no charges were filed within 300 days, they were entitled to treat that past act as lawful.

Scalia writing for a unanimous court:

• “….the City is correct that since no timely charge was filed attacking [the January 1996 decision], the City is now ‘entitled to treat that past act as lawful.”

• “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.”

Introduction to Josh Karsh

Attorney for Black firefighters

Questions

1. Case was based on the fact that only 89 and up were accepted. However, even among those with a 65 and above there was a 20% difference between blacks and whites. If the fire department had used people from 65 to 100 would you still have filed suit based on the test being discriminatory?

2. Do you think the outcome would have been different if the CFD had started by hiring only those who scored 100, then only those who scored 99, and so on?

3. Firefighters have to meet certain physical requirements. Given that this court battle took 17 years, do you think it was the best method? If so why? If not, what would have been better?

1. Compare to other cases where the age of the plaintiff matters less

4. Other areas of the city government, such as the police had gone through discriminatory hiring court battles in the past. How much did these prior cases affect your strategy for the case.

Questions Continued5. Did you have a consistent strategy throughout the whole case, or was it subject to change based on the rulings of judges?

6. What was the point in the case where you were most worried about losing?

7. Was there a point where the possibility of settling the case came up?a. If so, what prevented it?

8. Do you think there was a difference between someone who scored at 65 and someone who scored at 100?a. In your mind, is there a cutoff point above 65 that would not have been discriminatory?

9. What was the actual test used:9. Is there a breakdown of the test?10. Is there a copy somewhere to see?11. What procedural issues were you faced with that possibly changed the posture of the case?11. Why do you think it took 17 years to get a definitive decision on the City’s practices?

Chicago Firefighters Video

• Prior Supreme Court decision• http://

www.youtube.com/watch?v=XPqUW4Wi7qg&feature=endscreen

• After the Supreme Court decision• http://www.youtube.com/watch?v=otBTvw07lgE

• NY and Chicago win victories• http://www.youtube.com/watch?v=VGV0RnZf99I