In an opinion from September 2020, the United States Court of Appeal for the Second Circuit upheld the district court’s dismissal of a Title VII disparate impact class action claim.
The complaint originally alleged that the employer’s practice to not hire individuals based on past criminal convictions led to racial discrimination in violation of Title VII of the Civil Rights Act of 1964 in addition to various New York state laws. To support their claim, the plaintiffs cited national statistics showing that “African Americans are arrested and incarcerated at higher rates than [w]hites, relative to their share of the national population.”
In analyzing the plaintiffs’ argument, the court noted that the “fact that such a disparity exists among the general population does not automatically mean that it exists among the pool of applicants qualified for the jobs in question – what is true of the whole is not necessarily true of its parts.” Meaning, that the incarceration statistics cited may not represent the pool of candidates who would be eligible for a position with the employer.
To that end, the court focused on the fact that the positions applied for by the plaintiffs required “certain educational and technical credentials.” In support of its position, the court cited the plaintiff’s complaint which went “out of its way to highlight Plaintiffs’ education and technical credentials” including a Master’s degree earned by one of the named plaintiffs. Based on that, the court determined the national statistics cited “are not representative of the qualified applicant pool.” (Emphasis in original).
The court left the door open for the use of national statistics in these types of claims but advised that statistics relied upon “must at least be able to support the plaintiff’s claim without resorting to a statistical fallacy.”
Following this order, the plaintiffs filed a motion for a rehearing en banc. That petition was denied in February 2021. A motion to vacate the judgment was then filed in March 2021. In the motion to vacate, the plaintiffs are seeking the ability to file an amended class action complaint that they allege will cure the “critical flaw” identified by the court relative to the relationship between national statistics and the employer’s candidate pool. Thus, the case continues.
The complaint originally alleged that the employer’s practice to not hire individuals based on past criminal convictions led to racial discrimination in violation of Title VII of the Civil Rights Act of 1964 in addition to various New York state laws. To support their claim, the plaintiffs cited national statistics showing that “African Americans are arrested and incarcerated at higher rates than [w]hites, relative to their share of the national population.”
In analyzing the plaintiffs’ argument, the court noted that the “fact that such a disparity exists among the general population does not automatically mean that it exists among the pool of applicants qualified for the jobs in question – what is true of the whole is not necessarily true of its parts.” Meaning, that the incarceration statistics cited may not represent the pool of candidates who would be eligible for a position with the employer.
To that end, the court focused on the fact that the positions applied for by the plaintiffs required “certain educational and technical credentials.” In support of its position, the court cited the plaintiff’s complaint which went “out of its way to highlight Plaintiffs’ education and technical credentials” including a Master’s degree earned by one of the named plaintiffs. Based on that, the court determined the national statistics cited “are not representative of the qualified applicant pool.” (Emphasis in original).
The court left the door open for the use of national statistics in these types of claims but advised that statistics relied upon “must at least be able to support the plaintiff’s claim without resorting to a statistical fallacy.”
Following this order, the plaintiffs filed a motion for a rehearing en banc. That petition was denied in February 2021. A motion to vacate the judgment was then filed in March 2021. In the motion to vacate, the plaintiffs are seeking the ability to file an amended class action complaint that they allege will cure the “critical flaw” identified by the court relative to the relationship between national statistics and the employer’s candidate pool. Thus, the case continues.