Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘disparate impact’

Trump wants to dismantle decades of discrimination protections

Monday, January 7th, 2019

The Trump administration is looking to either eliminate or severely restrict regulations designed to protect people from discrimination in a number of categories, the Washington Post reported Thursday.

The Department of Justice is asking federal agencies to assess ways to scale back regulations that allow for “disparate impact” legal challenges to discrimination.

Disparate impact refers to discrimination that occurs against a group even when there is no clear evidence of an intent to discriminate.

For example, an employer might implement a broad restriction on hiring people who have criminal records. Such a policy might not mention race at all, but because of racial disparities in the criminal justice system, it could end up leading to far more discrimination against people of color.

Disparate impact litigation would be a vehicle for challenging that policy as racial discriminatory, even if there’s no evidence that the employer put the policy in place in an attempt to give white candidates an advantage.

The approach is not new; in fact, it’s been a practice dating back a half-century to when civil rights laws were first put on the books. And litigation based on showing a disparate impact has been used to combat discrimination in just about every way, including employment, housing, education, and credit.

The administration has already demonstrated a willingness to gut this important tool for combatting discrimination.

Last month, the Federal Commission on School Safety recommended rolling back disparate impact policies in education. These policies sought to minimize the amount of punitive discipline for minor infractions, because such discipline was disproportionately applied to students of color and students with disabilities — fueling the so-called “school-to-prison pipeline.” The commission claimed without a clear explanation that allowing such discipline would somehow protect students from gun violence.

There are many inconsistencies in terms of when courts will consider disparate impact claims. For example, the Supreme Court ruled in 2015 that disparate impact claims are viable in terms of housing complaints. But there are other forms of discrimination where the Court has not guaranteed that the claims can be heard.

Tom Silverstein, associate counsel at the Lawyers’ Committee for Civil Rights, explained to ThinkProgress that where the Supreme Court has not resolved the issue, the administration will try to prohibit bringing disparate impact claims at all. Where the Supreme Court has said such claims are viable, the administration could place many limitations on them that make it far harder for them to succeed.

In that 2015 case, the Court may have upheld disparate impact claims in housing, “but there was no holding on how you prove a disparate impact claim or what the standard of proof is,” Silverstein explained. New regulations could heighten the standard for showing a causal relationship between a company’s policy and its disparate impact, or they could burden plaintiffs with having to prove that a less discriminatory policy would still serve the company’s interests. These would shift the advantage more to the company discriminating and make it harder to bring successful claims against them.

The Department of Housing and Urban Development already has indicated that it is seeking to undo its disparate impact rule, which would make it easier for insurance companies to implement policies that discriminate against minorities.

In the case of lending, the Supreme Court has not weighed in on whether disparate impact claims are viable under the Equal Credit Opportunity Act. Silverstein offered a hypothetical situation in which a company’s car purchase loans resulted in people of color disproportionately paying higher interest rates on their vehicles. “If it’s not an instance of intentional discrimination — or it is but you can’t prove that without going through discovery — it makes it harder to challenge that kind of discrimination.”

Sasha Samberg-Champion, a civil rights lawyer at Relman, Dane & Colfax, told ThinkProgress that the proposed changes are “harmful” because they will make it far harder to prove discrimination is taking place. An insurance company, for example, might be relying on a certain automated algorithm that ends up making it harder for people of color to obtain coverage, but it might not be possible to trace that algorithm back to specific individuals or any intent to discriminate.

“There may be some bad intent going on as well,” he said, “but it’s virtually unknowable when you begin investigating and begin litigation. You know there’s a bad practice that has a severe disparate impact on minority populations, and you know it’s irrational and has no justification. But you don’t know why unless they’re stupid enough to announce that they’re bigots.”

The administration’s restrictions could lead to a situation where plaintiffs basically have to find some clear evidence that a company was trying to discriminate, not just show that they happened to be discriminating. “If you make it a requirement that you prove intent, you’re making it impossible to bring litigation for practical purposes, even if in the real world there is bad intent,” he said.

There has long been a partisan divide on disparate impact litigation, with Republican presidential administrations dating back to Ronald Reagan opting simply not to pursue such cases. But completely dismantling the regulations that allow for them is a substantial change.

“This is a major attack on civil rights enforcement,” said Joe Rich, who recently retired from the Lawyers’ Committee for Civil Rights. “In the past, they would not use disparate impact, but they would not try to change the regulation. They would not try to destroy it,” he told ThinkProgress. “If you get rid of the regulation, there will be nothing to enforce.”

This article was originally published at ThinkProgress on January 3, 2019. Reprinted with permission.

About the Author: Zack Ford is the LGBTQ Editor at ThinkProgress.org, where he has covered issues related to marriage equality, transgender rights, education, and “religious freedom,” in additional to daily political news. 

Employee Rights Short Takes: Race Discrimination, 5.8 Milllion Dollar Verdict, Breach of Contract Damages And More

Friday, December 24th, 2010

ellen simonHere are a few short takes about some employment cases worth noting this month:

EEOC Files Lawsuit Against Kaplan Higher Education Corp. Claiming Race Discrimination

The EEOC announced last week that it filed a class action race discrimination case against Kaplan Higher Education Corp. The suit alleges that since at least 2008, Kaplan rejected applicants based on their credit history and that this practice has an unlawful discriminatory impact because of race. The EEOC further claims that the practice is neither job-related nor justified by business necessity and therefore violates Title VII of the Civil Rights Act of 1964.

These kinds of discrimination lawsuits are known as “disparate impact” cases and are often the legal foundation upon which class action discrimination cases are premised. The claim arises when an employer’s practice or policy, though neutral on its face, has a disparate impact on a group which is protected under one or more of  the civil rights statutes. For more about disparate impact cases, see here.

There has been much discussion about the use of credit history as a prerequisite for hiring and its disparate impact on minorities though we haven’t seen many lawsuits challenging the practice.

It will be interesting to follow this litigation and see how Kaplan justifies its policy to check credit history as a job related business necessity. The outcome of this litigation could have a significant impact on future higher practices nationwide. For more about the case, read the NY Times article here.

El Paso Employee Wins 5.8 Million Dollar Discrimination Verdict

An El Paso, Texas jury awarded Mark Duncan, a white benefits supervisor, 5.8 million dollars in a discrimination case against his former employer, El Paso Electric.

According to the El Paso Times, Duncan worked for El Paso Electric for six years and had a good employment history with no record of discipline. He was fired in December of 2007 after his life was threatened during an altercation with a company human resources manager.

Even though Duncan was cleared of any wrongdoing the company fired him along with the human resource manager.

Duncan claimed he was fired because the company feared a lawsuit from the Hispanic human resource manager and that it got rid of him (“the white guy”) to create a defense.

The jury agreed with Duncan and awarded him $129,913 in past lost wages; $699,196 in future lost earnings; $5000 in compensatory damages; and 5 million in punitive damages. El Paso Electric plans to file motions to set aside and reduce the verdict according to newspaper reports.

It certainly looks like whoever made the decision to fire Duncan either forgot or didn’t know that white employees can be victims of race discrimination too.

Two Decisions Worth Noting

In Helpin v.Trustees of the University of Pennsylvania, the Supreme Court of Pennsylvania addressed an issue of damages which can be very helpful to other employees down the road.

Mark Helpin, a dentist and professor, won a lawsuit for breach of contract against the University of Pennsylvania and an award of over four million dollars.

Helpin claimed that he was constructively discharged without “just cause” in violation of his contract and that Penn had improperly failed to continue to pay him 50% of the Children’s Hospital of Philadelphia dental clinic profits to which he was entitled. In a great discussion of future earnings, lost business profits, and the propriety of the “total offset approach” to the calculation of those damages, the Supreme Court of Pennsylvania affirmed the award.

Under the total offset approach, it is assumed that the effect of the future inflation rate will completely offset the interest rate, thereby eliminating the need to discount an award to present value. It has been adopted by some, but not most courts, but I expect so see more of its application in opinions to come.

For anyone involved in a case with a large future damages component, this opinion is both interesting and important and one worth sharing with any expert economists prior to his or her testimony.

In Quinlan v. Curtisss-Wright Corp. the New Jersey Supreme Court issued an extremely important and helpful decision which addresses the situation in which an employee takes company documents which bolster his or her  discrimination claim.

Joyce Quinlan was the Executive Director of Human Resources for Curtiss-Wright. She filed a lawsuit claiming that she was passed over for a promotion because of gender discrimination.

Quinlan copied files — over 1800 documents — which supported her claim and gave them to her lawyers.

The company found out during discovery in her pending case  that she copied the documents and and fired her (although it did not fire her right away). It claimed that she stole company property in violation of the company’s code of conduct and therefore the discharge was justified.

Quinlian amended her lawsuit to add a retaliation claim. The case was tried and the jury awarded her more that 5.4 million dollars in compensatory damages and over 4.5 million dollars in punitive damages.

The case went to New Jersey Supreme Court which ruled in her favor this month. It upheld the trial court’s determination that Quinlan’s copying and retaining the company’s documents was not “protected conduct” and affirmed the jury’s finding that her firing was retaliatory.

In line with several federal court decisions, it adopted a “flexible totality of the circumstances approach” which sets forth seven factors to be considered in determining whether an employee is permitted to take and use documents belonging to his or her employer.

While this is a very good decision for employees, those who feel their employment rights may have been violated still need to be very cautious about taking company documents in violation of a company policy, even if the documents bolster their claims.  The law is tricky and changing, and it’s  best to seek counsel and get advice before it’s too late.

Both of these cases represent significant victories for the the plaintiffs and their lawyers.

This article was originally posted on Employee Rights Post.

About the Author: Ellen Simon is recognized as one of the leading  employment and civil rights lawyers in the United States. She offers legal advice to individuals on employment rights, age/gender/race and disability discrimination, retaliation and sexual harassment. With a unique grasp of the issues, Ellen’s a sought-after legal analyst who discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post has dedicated readers who turn to Ellen for her advice and opinion. For more information go to www.ellensimon.net.

Your Rights Job Survival The Issues Features Resources About This Blog