Excerpted from Littler.com by authors: Rod Fliegel and Molly Shah
On July 1, 2014, the court granted class certification in a high-profile disparate impact discrimination case against the Census Bureau in federal court in New York based on its criminal record screening practices, Houser et al v. Pritzker.. The plaintiffs are represented by a well-known New York class action law firm and not by the Equal Employment Opportunity Commission (EEOC). The suit seeks back pay and equitable relief for a class of unsuccessful Latino and African-American job applicants. The Bureau allegedly discriminated against the class members by (1) requiring them to provide the Bureau with detailed information about their prior criminal records in order to progress in the hiring process (referred to as the 30-day Letter), and (2) rejecting job applicants on the basis of an allegedly arbitrary and inflexible assessment of their prior criminal records.
The court did not decide whether the Bureau discriminated against the class members. The court only reached the procedural question of whether the plaintiffs could certify the case as a class action. Nevertheless, the court’s opinion is significant because it may tend to encourage similar disparate impact discrimination suits by the plaintiff’s bar. In that regard, the court distinguished the U.S. Supreme Court’s opinion in Wal-Mart Stores, Inc. v. Dukes because the Bureau’s practices, unlike those of the company in Dukes, were both uniform and non-discretionary.
Additionally, the court’s ruling that the Bureau’s practices can be tested by common proof may encourage the EEOC to continue to press its criminal records screening cases.1 The EEOC can prosecute broad claims without even certifying a class, but in disparate impact litigation must still identify with specificity the alleged discriminatory employment practice. Indeed, in its disparate impact lawsuit against a different employer, the EEOC has, so far, failed to meet this burden.
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