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Outten & Golden Obtains Favorable Disparate Impact Decision in Easterling v. State of Connecticut Department of Correction

A recent decision involving a Title VII disparate impact claim obtained by Outten & Golden from the District Court of Connecticut is gaining increasing attention from employment lawyers attempting to overcome challenges to class certification. The decision distinguishes the Supreme Court decision of Wal-Mart Stores, Inc. v. Dukes, and also highlights the continued importance of Second Circuit precedent in employment class actions brought under Title VII.

A recent decision involving a Title VII disparate impact claim obtained by Outten & Golden from the District Court of Connecticut is gaining increasing attention from employment lawyers attempting to overcome challenges to class certification. The decision distinguishes the Supreme Court decision of Wal-Mart Stores, Inc. v. Dukes, and also highlights the continued importance of Second Circuit precedent in employment class actions brought under Title VII.

On May 30, 2008, Outten & Golden and Public Citizen Litigation Group filed a sex discrimination class action on behalf of Cherie Easterling, and all other women denied a position as a Correction Officer with the Connecticut Department of Correction because they failed the 1.5 mile run aspect of the application process.

The lawsuit seeks declaratory, injunctive, and addition al equitable monetary relief under Title VII of the Civil Rights Act of 1964 on behalf of approximately 125 women. Specifically, the complaint alleges that the use of the 1.5 mile run test disproportionately excluded women from obtaining the Correction Officer position and was not supported by business necessity.

The Court granted class certification on January 4, 2010, and shortly thereafter, on May 5, 2011, found the Department's use of the 1.5 mile run test had a discriminatory disparate impact on female applicants in violation of Title VII.

Subsequent to the Court's determination that the Department was liable, the Department filed a motion seeking to decertify the class on July 14, 2011 in light of the Supreme Court decision in Wal-Mart Stores, Inc. v. Dukes, which the Court denied on November 22, 2011. However, in light of Dukes, the Court adjusted its previous class certification order to provide for a bifurcated proceeding under Rule 23(b)(2)-(b)(3), (c)(4), in which the determination of liability and relief would be litigated separately.

As a result of these decisions, any woman who applied for a Correction Officer position with the Connecticut Department of Correction between 2004-2006, who failed only the 1.5 mile portion of the physical fitness test, is currently presumptively entitled to an award of their lost wages and the value of lost benefits.

The recovery period for back pay potentially extends from the date they would have been appointed to the Correction Officer position (absent the 1.5 mile test) to the entry of final judgment, which is not anticipated prior to 2013. Each class member may be entitled to as much as hundreds of thousands of dollars in lost wages (including lost overtime pay), with a reduction for any wages they have actually earned in employment since their application.

Class members may also be entitled to front pay or priority hiring with retroactive seniority.

This decision has been cited in notices of supplemental authority in numerous employment discrimination class actions because the decision cogently explains that, post-Dukes:

(1) the Second Circuit continues to accept bifurcated certification of liability and remedial phase classes under Rule 23(b)(2), (c)(4) and Rule 23(b)(3), (c)(4) for the prosecution of claims under Title VII;

(2) even where class plaintiffs file a complaint also seeking non-incidental individual monetary relief class certification of class-wide declaratory and injunctive relief is appropriate under Rule 23(b)(2), (c)(4);

(3) certification of an economic damages class is appropriate under Rule 23(b)(3), (c)(4), despite the existence of some individualized issues regarding monetary damages, because the individual questions are less substantial than the issues that will be subject to generalized proof; and

(4) the Second Circuit exhorts district courts to take full advantage of Rule 23(c)(4) to certify separate issues in order to reduce the range of disputed issues in complex litigation and achieve judicial efficiencies, and that Dukes did not reject this view.

In short, the decision stands as a comprehensive explanation of why many of the "Dukes" motions in opposition to employment discrimination class actions should fail.

Please visit the professional bio of Cyrus Dugger at the Outten & Golden LLP website.

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