The Third Circuit, declaring a split with several other courts, holds that an ADEA disparate-impact case may allege discrimination against a subset of the protected group, here employees 50 and over. Prior decisions had held that such claims could be based only on the entire protected group - age 40 and over - but the Third Circuit panel holds that "their reasoning relies primarily on policy arguments that we do not find persuasive."
It's rare for a federal court of appeals to toss a defense jury verdict in an employment-discrimination case, and rarer still for the panel to order entry of a judgment in favor of a plaintiff. Yet both things happened in yesterday's Seventh Circuit decision, which held that a group of female paramedic applicants proved they were unlawfully screened out of employment due to an unreliable physical-skills entrance examination.
The Eleventh Circuit holds (2-1) that hiring guidelines that target employees a few years out of college, or that discourage hiring of employees with too much experience, may violate the ADEA if they have a disparate impact on hiring employees age 40 and over. The majority also holds that equitable tolling of the limitations period for filing an EEOC charge does not necessarily depend on concealment or fraud by the employer.
A long-running disparate impact case challenging promotions of firefighters to the ranks of Lieutenant and Captain is remanded by the Sixth Circuit for a third trial to award back pay, and the panel reassigns the case to a new judge for good measure. The panel has valuable things to say about how to calculate monetary make-whole relief. It also affirms injunctive relief, and appointment of a monitor, to purge the city's violation.
One of the challenges recently facing groups of employees hurt by discriminatory employment practices has been to persuade courts to allow the entire controversy to be decided in a single class action. Today, the Seventh Circuit issued a decision that helps break down some of the barriers to effective class certification, in a case involving a city school board's policy of placing schools on suspension - primarily affecting minority neighborhoods - and firing teaching staff.
The First Circuit holds that ten African American police officers presented sufficient evidence to prove that police department drug testing, using hair samples, had a disparate impact on the basis of race, in violation of Title VII. The parties are remanded to the district court to determine, among other things, whether the use of hair samples is a reliable test, or generates too many false positives among black test subjects.
Two women sales representatives who were denied promotions by hardware giant Hilti get a renewed opportunity to prove at trial that they were denied promotions because of sex, thanks to a Tenth Circuit decision on Tuesday. Among other evidence in the record: the male manager evaluating one plaintiff allegedly told her that tools "are like guns for men" and using them is "almost like second nature."
For employers and their counsel who insist that Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), is a silver bullet against Title VII discrimination class actions, today's decision in the McReynolds case was not good news. The Seventh Circuit sweeps past the employer's arguments and holds that the district court erred by not certifying a Rule 23 class action in a disparate-impact race discrimination case.
For the second time in three months, The Third Circuit confronts a New Jersey municipal residency requirement - challenged for disparate impact under Title VII - and once again rules in favor of the applicants. One twist in this case was that the residency requirement was, in part, arguably required by a consent decree. The panel rejects a Ricci defense.
On November 16, 2011, the Equal Employment Opportunity Commission ("EEOC") approved, by a 3-2 vote, draft final regulations that provide guidance on the meaning of "the reasonable factor other than age" defense under the Age Discrimination in Employment Act ("ADEA"). These proposed regulations advance the purpose of the ADEA by forcing employers to think twice about whether their policies have an arbitrarily discriminatory effect on older workers.