The United States District Court for the Western District of New York recently granted an early dismissal of a class action lawsuit prior to class certification. According to plaintiffs in the case, the employer’s criminal background check policy for job applicants illegally discriminated against African-American job candidates.
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In late January 2019, the Seventh Circuit Court of Appeals ruled that the Age Discrimination in Employment Act (“ADEA”) does not allow outside job applicants to bring disparate impact claims.  The plaintiff in the case, Dale Kleber, an attorney, is now asking the Supreme Court to review that decision.
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The Texas Supreme Court is considering a case that could have important implications to disparate impact analysis, including on criminal background checks. The case also foreshadows further challenges from the Texas Attorney General to aggressive positions taken by federal enforcement agencies in regard to disparate impact.
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On April 9, 2014, the Sixth Circuit of Appeals not only affirmed summary judgment in EEOC v. Kaplan Higher Education Corp., et al. but also chastised the EEOC for applying a flawed methodology in its attempts to prove that using credit checks as a pre-employment screen had an unlawful disparate impact against African-American applicants.
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On October 7, 2013, the United States Court of Appeals for the Sixth Circuit upheld the imposition of fees and costs against the Equal Employment Opportunity Commission (“EEOC”) in EEOC v. Peoplemark, Inc., Case No. 11-2582, for knowingly pursuing a meritless claim in which the agency alleged that Peoplemark’s criminal background check policy had a disparate impact on minority job applicants.  The EEOC recently has moved aggressively to enforce its April 2012 guidance regarding the use of criminal background checks in hiring.  That guidance appears to suggest that any criminal background check policy may be vulnerable to an EEOC enforcement action under a disparate impact theory—regardless of its terms and the manner in which it is implemented—solely on the basis of national data that show disproportionate rates of incarceration for African-Americans and Hispanics.  However, the Peoplemark decision, of which the EEOC presently seeks en banc review, also heralds an emerging pattern of judicial skepticism towards the agency’s enforcement tactics and its efforts to pursue disparate impact claims premised solely on national statistical evidence that is unrelated to any specific employer practice.


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Since the U.S. Supreme Court’s decision in Wal-Mart v. Dukes, there has been a significant amount of educated speculation about the effect of that decision on class action litigation in general and more particularly on class actions involving claims of employment discrimination.  Dukes is seen as creating an impassable barrier for class actions claiming discrimination in multiple locations based on excess subjectivity arising from decentralized decision-making.  Dukes instead focuses the inquiry on the existence and discriminatory effect of enterprise-wide policies such as an employment test or standardized performance criterion.  The question remains: what constitutes an enterprise-wide policy or practice?  This is a question that has challenged practitioners since General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 159 n. 15 (1982), and before.

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In its decision in Ricci v. DeStefano, 129 S.Ct. 2658 (2009), the Supreme Court sought to resolve a conflict between the “twin pillars of Title VII,” the Act’s disparate-impact and disparate-treatment provisions.  Ricci involved a promotional examination administered by the City of New Haven.  After candidates took the examination, the City refused to certify

The national unemployment rate, as reported by the Department of Labor, has stubbornly remained at about 9% or higher for more than two years. As many of these unemployed individuals search for new jobs, some have purportedly been denied available employment opportunities simply because they were unemployed. Unemployment discrimination, as it is often called, is not currently prohibited under federal law. The EEOC and Congress, however, have taken steps focused on so-called unemployment discrimination that could affect how employers conduct their hiring processes.


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On Monday, the United States Supreme Court ruled that claims brought by African American firefighters who had sued the City of Chicago alleging that a hiring test was discriminatory were not time barred.  Lewis v. City of Chicago, No. 08-974, 560 U.S. ___ (2010).  The City conceded that its use of the hiring test was unlawful, but argued that the firefighters claims were untimely.  Addressing only the statute of limitations issue, the Court issued a unanimous decision in favor of the firefighters, holding that the firefighters timely filed a disparate impact claim based on the continued use of the hiring test.

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