The D.C. Circuit holds (2-1) that a group of fired social workers (SWAs) and social service assistants (SSAs) had – contrary to the district court’s ruling – sufficiently identified a “particular emploment practice” susceptible to challenge for its adverse racial impact under Title VII, 42 U.S.C. § 2000e-2(k)(1)(A)(i). The case is remanded for further consideration of whether the plaintiffs established a statistical racial disparity.
Davis v. District of Columbia, No. 17-7071 (D.C. Cir. June 7, 2019): Forty-seven plaintiffs filed suit alleging that their agency, the District of Columbia Child and Family Services Agency, selected categories of employees for a reduction-in-force (RIF) that were heavily staffed by Black employees. Due to a budget shortfall, the agency eliminated 115 positions. The plaintiffs alleged that “[a]t an agency that was 73.4 percent African American, 93 percent (107 out of 115)” of the RIF vicitms were Black.
By defendant’s own account, the “Agency ‘did not utilize a single uniform criteria, test or requirement’ in determining which positions would be eliminated,” but rather “realign[ed] functions and implement[ed] new service models,” as well as made “multiple individual decisions made by the Director working in close consultation with the Chief of Staff, the Deputy Directors in charge of CFSA’s various divisions, and other senior level managers in the Agency’s executive team.”
Then, curiously, the Agency reopened some of the eliminated positions, and even though plaintiffs applied for them, not all were allowed to return (only 18 out of 44 applicants were rehired). This was because the District imposed a new bachelor’s degree requirement for the job that a number of the fired employees could not satisfy.
The plaintiffs sued the District under Title VII and the D.C. Human Rights Act, alleging that the method used to select jobs for elimination and the new college-degree requirement both constituted disparate treatment (intentional discrimination) and disparate impact (a facially-neutral policy that lands substantially harder on the protected group). The district court granted a motion to dismiss in part, and eventually summary judgment on the remainder of the case. (The plaintiffs also pursued an age-discrimination theory, but did not pursue it on appeal).
Specifically on the RIF disparate-impact claim, “the district court granted summary judgment to the Agency on the threshold ground that ‘plaintiffs have failed to identify a specific employment practice’ actionable under a disparate-impact theory.” It also held, with respect to the college-degree disparate-impact claim, that “plaintiffs had failed to present evidence regarding the qualified labor pool.”
On appeal, the panel majority reverses in part. While affirming most of the dismissal, it remands the RIF disparate-impact claim on the ground that the plaintiffs sufficiently identified a “particular employment practice” under Title VII.
The panel majority notes that “this is the first time this court has been asked whether a RIF or, more precisely, the practices through which an employer implements a RIF are subject to disparate-impact review under Title VII.” It holds that while disparate-impact plaintiffs cannot rely on a “mere measurement of statistical shortfall” to make out their claim, the district court erred in holding that “plaintiffs identified only ‘an overall decisionmaking process,’ which did not meet the statutory requirement to identify the particular practices that caused them to lose their jobs.
As the panel majority summarizes, “[t]here is no mystery in this case as to the layoff practices plaintiffs challenge: the Agency’s choices to (a) target the SWA and SSA job categories for elimination; and (b) allow managers to make putatively individualized, discretionary and subjective choices of which positions to winnow from other units.” This was quite enough to meet their burden under 42 U.S.C. § 2000e-2(k)(1)(A)(i). “To the extent that a completed RIF is an identified event comprising selection and termination of a rash of employees, it is a far cry from the challenges to bottomline ‘racial imbalance in the work force’ that precedent and our colleague eschew.”
On remand, the district court is directed to determine whether “plaintiffs clear the statistical [disparity] hurdle.” If so, “the parties will have an opportunity after appropriate discovery to address whether the Agency’s execution of the reduction in force was justified by business necessity. Justification supporting elimination or downsizing of certain offices might at that point be seen to respond to the relevant statistical showing.”
The full panel also affirms judgment against plaintiffs on other grounds. It rejects the challenge to college-degree requirement because plaintiffs failed to establish a racial disparity with relevant evidence of a qualified applicant pool. It also holds that two plaintiffs were personally estopped from pursuing claims because they failed both “to disclose their potential Title VII claims in their bankruptcy petitions” and to present any evidence (including their own testimony) that the omission was inadvertent or mistaken.
In partial dissent, Judge Katsas would have entirely affirmed summary judgment, concluding that all that plaintiffs offered below was bottom-line racial disparity in termination untethered to a particular policy. “[T]he gravamen of the plaintiffs’ claim is that a set of layoffs caused the racial composition of the Agency’s workforce to change,” but “[t]he plaintiffs do not link that change to anything besides the layoffs. So, they have not identified any ‘particular employment practice’ that caused the adverse impact ….”