Seyfarth Synopsis: On August 8, 2022, the U.S. District Court for the Northern District of Illinois granted Plaintiffs’ motion for class certification for a class of applicants who sought employment with the Cook County Department of Corrections. The Plaintiffs argued that certain hiring examinations disparately impacted African-Americans, and were therefore discriminatory under Title VII of the Civil Rights Act.
As we previously predicted here, disparate impact class actions premised on a theory of liability derived from entrance exams, such as physical abilities tests, are no longer flying under the radar. It is important for employers to be informed on the implications of entrance exams if they require applicants to pass such tests during the hiring process.
In Simpson v. Dart, the Plaintiffs initiated a putative class action claiming that the hiring practices of Correctional Officers at the Cook County Department of Corrections were racially discriminatory against African-Americans. The hiring process at issue consists of various steps conducted by the Merit Board and Sheriff’s Office, including: (1) screening for minimum qualifications; (2) an initial written examination; (3) a second written examination; (4) a physical abilities test; (5) finger printing and drug testing; (6) a personal history questionnaire and follow-up interview; and (7) final review by the Merit Board members. Applicants must successfully complete this process and obtain certification before they are eligible for hire.
At issue in the Plaintiffs’ motion for class certification were the Merit Board’s hiring examinations, such as the initial written examination, the second written examination, and the physical abilities test. The Plaintiffs claimed that the hiring examinations disparately impact African-Americans in violation of Title VII.
The Court’s Decision
The Court considered the Defendant’s challenge to the Plaintiffs’ attempted extension of their Title VII class period relative to three of the four sub-classes at issue, by using a start date of July 2014. Such a start date fell far earlier than 300 days from the filing of the underlying charge of discrimination (i.e., the applicable statute of limitations period). In support of such a class period, the Plaintiffs relied on Lewis v. City of Chicago, Ill., 560 U.S. 205, 210-11 (2010), claiming that the unlawful hiring practice at issue involves the written and physical examinations, which took place in July 2014.
The Court disagreed. It found that Lewis stands for the proposition that later implementation of a policy that causes a disparate impact can qualify as a new, actionable employment practice. Critically, the U.S. Supreme Court did not hold that a plaintiff can “reach back” to a testing date that falls outside of the 300-day statute of limitations window. Accordingly, the Court limited the class period to 300 days from the date the charge was filed — March 2015.
The Court then analyzed whether Plaintiffs met the requirements of Rule 23 for certifying the classes at issue. First, the Court held that the Plaintiffs established the commonality requirement because the hiring examinations constitute an employment policy that causes racial discrimination not justified by any business necessity. Critical to the Court’s holding in this respect was that Plaintiffs pointed to employment actions that did not involve the exercise of discretion. Second, the Court dismissed the Defendants’ argument that the claims of the named plaintiffs were not typical of the putative class. The Court opined there was “no question the named plaintiffs’ claims arise from the standardized tests and are based on the same legal theory, disparate impact,” and Defendants’ contention that such a requirement could not be satisfied because they “prepared for the standardized tests in different ways” was unavailing. Such “minor variances” made “no difference to the Court’s certification analysis.”
The Court similarly dismissed the Defendants’ arguments relative to the adequacy requirement. Specifically, the Defendants claimed that the scope of certain merits issues relative to the charge of discrimination would be addressed at the summary judgment stage, but such issues had clear implications for class certification. The Court held that since such an argument was — as Defendants admitted — suited for the summary judgment stage, the Court refused to consider the argument and held the Plaintiffs are adequate class representatives.
Finally, the Court considered whether there were common questions of law or fact that predominated over individual questions. Defendants argued that an individualized analysis of each applicant would be necessary because there are more steps involved in the hiring process than just the standardized tests. However, the Court held that, in the context of disparate impact cases, Title VII guarantees protected individuals the opportunity to compete equally based on hiring criteria, and losing an opportunity to compete equally (here, via the examinations) were actionable injuries. Accordingly, the Court granted the Plaintiffs’ motion for class certification.
Implications For Employers
This case doubles down on the long-standing principle that a hiring or employment policy not carefully vetted for discriminatory effect can lead to class action problems. Employers should be especially careful when subjecting applicants to certain tests or other criteria as a screening mechanism because, as demonstrated here, disparate impact lawsuits based on this theory appear to be making a comeback.