May 25, 2022

Volume XII, Number 145

Advertisement
Advertisement

May 25, 2022

Subscribe to Latest Legal News and Analysis

May 24, 2022

Subscribe to Latest Legal News and Analysis

May 23, 2022

Subscribe to Latest Legal News and Analysis

7th Circuit Reverses Denial of Class Certification for Disparate Impact Subclasses

On January 6, 2022, the Seventh Circuit Court of Appeals held that the U.S. District Court for the Northern District of Illinois erred in denying class certification to putative subclasses of unsuccessful Black job applicants who alleged that hiring exams used by the Cook County Department of Corrections (“DOC”) resulted in a disparate impact on the basis of race in violation of Title VII.  The case is Simpson v. Dart, 21-cv-8028.

Background

Plaintiff sought a position at the DOC on four separate occasions between 2014 and 2017, but his application was rejected each time.  The DOC’s hiring process consisted of five stages: (1) an initial written exam; (2) a written situational exam; (3) a physical fitness test; (4) a discretionary review; and (5) a discretionary final review.  Plaintiff sued after his rejections, claiming he was denied employment on the basis of his race under disparate treatment and disparate impact theories. Plaintiff moved under Rule 23 to certify a class of all unsuccessful Black DOC applicants going back to 2015 as well as five proposed subclasses consisting of candidates dismissed at each hiring stage.  The district court denied his bid for class certification.

Plaintiff appealed the certification ruling pursuant to Rule 23(f) as to the first three subclasses of unsuccessful applicants—i.e., applicants rejected after the written exams and physical fitness tests—and only insofar as those subclasses asserted disparate impact claims.

Seventh Circuit’s Ruling

The Seventh Circuit reversed, holding that the district court’s decision to deny class certification for these subclasses was erroneous in two primary respects:

  1. the district court erred in considering the merits of Plaintiff’s discrimination claims when determining whether class certification was appropriate. In particular, the Seventh Circuit held that the district court should not have considered evidence such as whether the hiring exams had been validated.  It noted that regardless of whether Plaintiff’s claims will ultimately fail on the merits: “Where, as here, a plaintiff identifies a discrete employment policy that allegedly results in discrimination, Title VII disparate impact claims are well suited for class wide adjudication: the policy either disparately impacted the plaintiff class or it did not.”

  2. the district court erred in failing to separately analyze Plaintiff’s disparate treatment and disparate impact claims.  The Seventh Circuit noted that because disparate treatment claims require proof of intentional discrimination whereas disparate impact claims do not, the commonality requirement may be more difficult to establish in disparate treatment claims. Each claim must be evaluated separately for class certification purposes.

Implications

This ruling may lead to more Rule 23 race-based disparate impact claims being filed within the Seventh Circuit.  It also serves as a reminder that employers implementing exam-based hiring criteria should take steps to ensure such exams do not engender a disparate impact on protected classes.

© 2022 Proskauer Rose LLP. National Law Review, Volume XII, Number 19
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Steven J Pearlman, Labor Employment Law Firm, Proskauer Law firm
Partner

Steven Pearlman is a partner in the Labor & Employment Law Department and co-head of the firm's Whistleblowing & Retaliation Group, resident in the Chicago office. Steven’s practice focuses on defending complex employment litigation involving claims of discrimination and harassment, wage-and-hour laws and breaches of restrictive covenants (e.g., non-competition agreements). He has successfully tried cases to verdict before judges and juries in Illinois, Florida and California, and defended what is reported to be the largest Illinois-only class action in the history of the U.S....

312-962-3545
Edward C. Young, Proskauer Rose, Harassment Lawyer, Labor Rights Attorney
Associate

Edward C. Young is an associate in the Labor & Employment Law Department. He represents companies nationwide in a broad range of employment issues, including discrimination, retaliation and harassment claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act and the Family Medical Leave Act, as well as other federal and state employment statutes and various common law torts. In addition, Eddie represents employers in trade secret matters and challenges to the independent contractor status of workers.

...

312-962-3595
Alyssa M. Cook Attorney Proskauer Labor and Employment Chicago
Associate

Alyssa Cook is an associate in the Labor Department and a member of the Employment Litigation & Arbitration Group.

312-962-3596
Advertisement
Advertisement
Advertisement