                              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,
                                               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.
                          ____________
      ARGUED FEBRUARY 22, 2008—DECIDED JUNE 4, 2008
                          ____________


  Before EASTERBROOK, Chief Judge, and BAUER and POSNER,
Circuit Judges.
  POSNER, Circuit Judge. In 1995, the City of Chicago
administered a new written test to 26,000 applicants for
jobs as firefighters. After grading the tests, the City placed
the applicants in three categories, based on their scores:
“well qualified,” “qualified,” and “not qualified.” The
plaintiffs (and the members of their class) are black appli-
cants who were placed in the “qualified” category. Appli-
cants were told the test results within days after January
26, 1996, when notices of the results were mailed to all
the applicants. On that day the mayor had announced
2                                                 No. 07-2052

that the test scores were in, but that “after all our efforts to
improve diversity [including racial], these test results are
disappointing.” There were no names in his public an-
nouncement.
  The notices stated that applicants in the qualified cate-
gory were unlikely to be hired because of the large number
whose scores had placed them in the “well qualified”
category, but that the applicants rated “qualified” would
remain on the eligible list (since they had passed the test)
for as long as the list was used. In fact, as the media
reported the next day, the City expected to hire only
about 600 of the 1,782 applicants in the “well qualified”
category in the next three years, implying that no one in
the “qualified” category would be hired.
  The suit, now entering its second decade, charges that
the test had a disparate impact on the black applicants
(that is, disproportionately classified them as “qualified”
rather than “well qualified”) and was not a valid test of
aptitude for firefighting. If these things are true, the basing
of hiring decisions on the test violated Title VII of the
Civil Rights Act of 1964. After protracted proceedings,
the district judge ruled in favor of the plaintiffs and
decreed injunctive relief.
  The City argues that the suit is untimely. The plaintiffs
were required, as a prerequisite to being allowed to sue,
to file a charge with the EEOC within 300 days after
their claim accrued. 42 U.S.C. § 2000e-5(e)(1); Stepney v.
Naperville School District 203, 392 F.3d 236 (7th Cir. 2004).
They filed their charge on March 21, 1997, which was
420 days after the date on which notice of the results of the
test had been sent them and probably 417 to 419 days
after they received the notice. But it was within 300 days
of the City’s beginning to hire applicants from the “well
No. 07-2052                                                  3

qualified” list, and the district judge ruled that the suit
was therefore timely because each time the City hired
applicants in the “well qualified” group as determined on
the basis of the January 1996 test results it committed a
fresh violation of Title VII that may have harmed “quali-
fied” applicants.
   The plaintiffs acknowledge that in a “disparate treat-
ment” case, that is, a case of intentional discrimination,
the charging period begins when the discriminatory
decision is made, e.g., Ledbetter v. Goodyear Tire & Rubber
Co., 127 S. Ct. 2162, 2168, 2172 (2007); Lorance v. AT & T
Technologies, Inc., 490 U.S. 900, 910-11 (1989); Delaware State
College v. Ricks, 449 U.S. 250 (1980); Huels v. Exxon Coal
USA, Inc., 121 F.3d 1047, 1051 (7th Cir. 1997); Cox v. City of
Memphis, 230 F.3d 199, 204-05 (6th Cir. 2000), rather than
when it is executed. We have held that if the plaintiff does
not learn of the decision until later, the limitations period
begins to run then. Cada v. Baxter Healthcare Corp., 920 F.2d
446, 450 (7th Cir. 1990); see also Oshiver v. Levin, Fishbein,
Sedran & Berman, 38 F.3d 1380, 1385-86 and n. 5 (3d Cir.
1994). But Hamilton v. 1st Source Bank, 928 F.2d 86, 87-88
(4th Cir. 1990) (en banc), is to the contrary, and the ques-
tion was left open by the Supreme Court in Ledbetter
v. Goodyear Tire & Rubber Co., supra, 127 S. Ct. at 2177 n. 10.
It is of no moment in this case.
  In the Ricks case a college denied a faculty member
tenure but offered him a “terminal” one-year contract,
which he accepted. The Supreme Court held that the
statute of limitations began to run from the denial of
tenure rather than from the plaintiff’s termination at the
end of the one-year period, since that termination was
the automatic consequence of the fact that he had only a
one-year contract, rather than being the consequence of
4                                                 No. 07-2052

some fresh act of discrimination. It is the same here. The
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.
  The plaintiffs do not quarrel with the proposition that
“well qualified” applicants should be hired ahead of
those who are merely “qualified.” They argue that the
test that sorted applicants into those categories was
discriminatory. That 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. It’s not as if the City had
divided applicants into “a white branch” and “a Negro
branch” and fixed a higher qualifying score for the latter;
for then a refusal to hire a black who scored higher than a
white but below the qualifying score for blacks would be
an unmediated act of discrimination. See Bazemore v. Friday,
478 U.S. 385 (1986) (per curiam); Anderson v. Zubieta, 180
F.3d 329, 335-36 (D.C. Cir. 1999); Brinkley-Obu v. Hughes
Training, Inc., 36 F.3d 336, 346 (4th Cir. 1994). The refusal to
hire would not be due, even in the first instance, to the
policy of basing hiring on test scores, since, by hypothesis,
some blacks would have had higher scores than some
whites yet, purely because of the racial division, would
not have been hired. This case is different because “well
qualified” is not a racial category, though its racial compo-
sition may have been influenced by a discriminatory
decision taken earlier.
  In Beavers v. American Cast Iron Pipe Co., 975 F.2d 792, 796-
800 (11th Cir. 1992), on which the plaintiffs heavily rely,
the employer limited insurance coverage to employees’
children who lived with their employee parent, and the
charge was that this discriminated against male employees.
No. 07-2052                                                  5

The plaintiffs sued long after the policy was adopted
but within 180 days (the limitations period applicable to
them) of the denial of their claim for dependent coverage,
and this was held to be timely because the allegedly
discriminatory policy was the sole cause of the denial;
there was no intervening neutral act, as in this case.
  The distinction is a fine one (and it is arguable on which
side of it the facts of Beavers fell) but it is the distinction
that the Supreme Court has drawn. The plaintiffs argue
that it does not apply to a disparate-impact case, but we
cannot think why not. The difference between the two
types of discrimination case is not fundamental. Disparate-
impact analysis, much like the McDonnell Douglas
method of establishing a prima facie case, involves the
use of circumstantial evidence to create an inference of
discrimination. “The concept of disparate impact was
developed for the purpose of identifying discriminatory
situations where, through inertia or insensitivity, compa-
nies were following policies that gratuitously—need-
lessly—although not necessarily deliberately, excluded
black or female workers from equal employment opportu-
nities. Often these were policies that had been adopted
originally for discriminatory reasons and had not been
changed when the employer ceased deliberately dis-
criminating—if he had; for another way of looking at the
disparate impact approach is that it is primarily intended
to lighten the plaintiff’s heavy burden of proving inten-
tional discrimination after employers learned to cover
their tracks.” Finnegan v. Trans World Airlines, Inc., 967
F.2d 1161, 1164 (7th Cir. 1992) (citations omitted). So if a
test or other method of screening applicants for employ-
ment bears more heavily on one protected group than on
another, the burden shifts to the employer to show that
6                                                 No. 07-2052

the method is a rational method of selecting employees.
42 U.S.C. § 2000e-2(k); see Allen v. City of Chicago, 351
F.3d 306, 311-12 (7th Cir. 2003); El v. Southeastern Pennsylva-
nia Transportation Authority, 479 F.3d 232, 240-41 (3d Cir.
2007); Meacham v. Knolls Atomic Power Laboratory, 461
F.3d 134, 139 (2d Cir. 2006). If he cannot show this, his
continuing to use the test suggests that his purpose in
doing so may be discriminatory, although that need not
be shown.
  Why any of this should change the date on which the
statute of limitations begins to run escapes us; and years
ago, in Davidson v. Board of Governors, 920 F.2d 441, 445
(7th Cir. 1990), we held that it does not. An applicant who
fails to meet the employer’s standard is hurt not by a
fresh act of discrimination, but as the automatic conse-
quence of an earlier one—the adoption of the standard.
See also Cox v. City of Memphis, supra, 230 F.3d at 204-05;
Bronze Shields, Inc. v. New Jersey Department of Civil Service,
667 F.2d 1074, 1083-84 (3d Cir. 1981).
  The Ninth Circuit reached a contrary result in Bouman
v. Block, 940 F.2d 1211, 1221 (9th Cir. 1991), but did so on
the mistaken premise that until the plaintiff was not
promoted she could not be “certain” that the use of the
allegedly discriminatory eligibility list would have that
consequence and until she was certain her claim would
not accrue. As explained in Davidson, if a plaintiff cannot
by exercise of reasonable diligence determine within
the statutory period whether he has been injured by an
unlawful practice, then even though his claim accrued
when the practice was adopted the doctrine of equitable
tolling will allow him to delay suing until he can collect
the information he needs in order to be able to sue. 920
No. 07-2052                                                 7

F.3d at 445. (The plaintiffs in this case argue equitable
tolling, but unavailingly as we shall see.) “[W]hen there
is only one wrongful act the claim accrues with the first
injury.” Palmer v. Board of Education of Community Unit
School District 201-U, 46 F.3d 682, 686 (7th Cir. 1995). The
first injury in this case was the classification of the black
applicants as merely “qualified” on the basis of a test
that they contend was discriminatory.
  The plaintiffs argue in the alternative that the City’s
violation of Title VII was a “continuing violation.” The
phrase does not mean what it seems to mean. Suppose
that year after year for ten years your employer does
not pay you the minimum wage. That is a continuing
violation in an acceptable sense of the term in ordinary
language, though “repetitive violation” would be more
precise. But the recurrent nature of the defendant’s con-
duct would not entitle you to wait until year 15 (assuming
the statute of limitations was five years) and then sue
not only for the wages you should have received in year
10 but also for the wages you should have received in
years 1 through 9. The statute of limitations begins to run
upon injury (or discovery of the injury) and is not restarted
by subsequent injuries. Knight v. Columbus, 19 F.3d 579,
581 (11th Cir. 1994); Hendrix v. City of Yazoo City, 911 F.2d
1102, 1103 (5th Cir. 1990); cf. Klehr v. A.O. Smith Corp.,
521 U.S. 179, 190 (1997). That is the “first injury” rule.
   The doctrine of continuing violation allows you to delay
suing until a series of acts by a prospective defendant
blossoms into a wrongful injury on which a suit can be
based. Limestone Development Corp. v. Village of Lemont,
520 F.3d 797, 801 (7th Cir. 2008); Reese v. Ice Cream Special-
ties, Inc., 347 F.3d 1007, 1011-12 (7th Cir. 2003); Huckabay
v. Moore, 142 F.3d 233, 239 (5th Cir. 1998); Glass v. Petro-
8                                                 No. 07-2052

Tex Chemical Corp., 757 F.2d 1554, 1561 (5th Cir. 1985).
Despite its name, it is a doctrine about cumulative rather
than continuing violation. A typical case is workplace
harassment on grounds of sex. The first instance of a
coworker’s offensive words or actions may be too trivial
to amount to actionable harassment, but if they con-
tinue they may eventually amount to an actionable pat-
tern of harassing behavior. And then the entire series is
actionable. E.g., National Railroad Passenger Corp. v. Morgan,
536 U.S. 101, 117 (2002); DeClue v. Central Illinois Light Co.,
223 F.3d 434, 435 (7th Cir. 2000); Galloway v. General Motors
Service Parts Operations, 78 F.3d 1164, 1166 (7th Cir. 1996);
Jensen v. Henderson, 315 F.3d 854, 859 (8th Cir. 2002);
Rush v. Scott Specialty Gases, Inc., 113 F.3d 476, 482 (3d Cir.
1997). If each harassing act had to be considered in isola-
tion, there might be no actionable claim even when by
virtue of the cumulative effect of the acts it was plain that
the plaintiff had suffered unlawful harassment. There is
nothing of that sort here. The plaintiffs were injured, and
their claim accrued, when they were placed in the “quali-
fied” category of the hiring list on the basis of their score
in the firefighters’ test; for that categorization delayed
indefinitely their being hired.
  Extension of the “continuing violation” doctrine in the
manner urged by the plaintiffs would have ludicrous
consequences. The plaintiffs received notification of their
“qualified” status in 1995; could they ten years later ask
to be hired as firefighters and when turned down sue
the City for violating Title VII because the reason for not
hiring them was that were not in the “well qualified” part
of the hiring list? The answer implied by the plaintiffs’
argument is “yes.”
  The plaintiffs further argue that even if their claim
accrued in January 1996, the running of the statute of
No. 07-2052                                                 9

limitations was tolled (stopped) because they could not
determine within 300 days whether they had a case. The
City claimed that its hiring test had been validated by
an expert, but it was slow to produce the expert report
for the plaintiffs to scrutinize.
   The doctrine of equitable tolling allows a plaintiff
additional time within which to sue (or meet some other
deadline) if even diligent efforts on his part would not
have enabled him to prepare and file his suit within the
statutory period. E.g., Beamon v. Marshall & Ilsley Trust
Co., 411 F.3d 854, 860-61 (7th Cir. 2005); Cada v. Baxter
Healthcare Corp., supra, 920 F.2d at 451; Chung v. United
States Department of Justice, 333 F.3d 273, 278-80 (D.C. Cir.
2003); EEOC v. Kentucky State Police Department, 80 F.3d
1086, 1096 (6th Cir. 1996). The question is whether the
plaintiffs in this case knew enough within 300 days of
the announcement of the test results to file a charge
with the EEOC. The deadline is short, but a charging
party is not required to conduct a precomplaint investiga-
tion, Cada v. Baxter Healthcare Corp., supra, 920 F.2d at 452,
as he would have to do if he were filing a suit. To
impose such a requirement would frustrate “a remedial
scheme in which laypersons, rather than lawyers, are
expected to initiate the process.” Edelman v. Lynchburg
College, 535 U.S. 106, 115 (2002), quoting EEOC v. Commer-
cial Office Products Co., 486 U.S. 107, 124 (1988). The EEOC
is supposed to do the investigating. EEOC v. Shell Oil Co.,
466 U.S. 54, 68 (1984).
  And even a precomplaint investigation need not
inquire into possible defenses, such as the defense that
an employment requirement having a discriminatory
impact is a bona fide qualification for hiring. To file a
suit, you need only have a prima facie case; you are not
10                                                No. 07-2052

required to plead the nonapplicability of possible defenses.
Gomez v. Toledo, 446 U.S. 635, 640 (1980). “Complaints
need not contain any information about defenses and
may not be dismissed for that omission.” Xechem, Inc. v.
Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004)
(emphasis in original). See also Oakes v. United States,
400 F.3d 92, 98 (1st Cir. 2005). The information bearing
on the existence of a meritorious defense is likely to be
in the defendant’s possession, or at least more readily
accessible to him than to the plaintiff; relative access is one
of the criteria for parceling out issues between the plain-
tiff’s case and the defendant’s case. Moreover, precom-
plaint investigation of possible defenses would often be
to a great degree wasted motion, because a plaintiff
cannot be certain which defenses the defendant will
plead, and so he would end up investigating some de-
fenses that turned out not to be pleaded.
  The plaintiffs’ lawyer admitted at argument, moreover,
that his reason for not filing the charge within 300 days
was not that he needed more time to be able to file such
a charge but that he didn’t think it necessary because
he thought that the statute of limitations would not
begin to run until the City began hiring applicants from
the “well qualified” category on the list. That was a
fatal mistake.
 The judgment is reversed with directions to enter judg-
ment for the defendant.
                                                   REVERSED.




                     USCA-02-C-0072—6-4-08
