Academic journal article Labor Law Journal

Class Action Trends Report, Summer 2018

Academic journal article Labor Law Journal

Class Action Trends Report, Summer 2018

Article excerpt

A Word From the Authors

Facing perpetual decisions regarding hiring, staffing, policy, discipline, and strategy, American businesses live the philosophical law of unintended consequences on a daily basis. While that philosophical law may absolve an individual of the unintended negative consequences of an otherwise well-meaning act under certain circumstances, no such protection exists for businesses faced with disparate impact claims: it may all be in the numbers. And so it goes in the realm of disparate impact claims. If an otherwise facially neutral policy disproportionately excludes-albeit unintentionally-a protected class from employment, promotion, or other workrelated benefits, your company may face a disparate impact claim.

Given the nature of disparate impact claims, it is hardly surprising that classwide litigation is the favored vehicle. Disparate impact claims may arise from the unlikeliest of places (e.g., dated job advertisements, application forms, job descriptions, policies, and even interview questions) or the more obvious practices (e.g., hiring, promotions, and salary level). With respect to the unlikely sources of disparate impact claims, consider this: do your company's job advertisements require academic degrees such as high school, regardless of the position? Is it necessary to have a high school diploma or a college degree to perform the functions of the position your company seeks to fill? Does that requirement exclude a particular class of persons such as individuals with learning disabilities? Do you only hire employees without criminal records? While your company may not intend to exclude a class of persons, a seemingly neutral qualification may produce the unintended consequence of excluding a protected category of individuals. Likewise, while a company may have the best of intentions in promotion and salary decisions, those decisions (and the criteria utilized in making them) may disproportionately affect protected classes.

In this issue, we delve into disparate impact claims. We will discuss areas of possible vulnerability, neutral policies frequently challenged in disparate impact lawsuits, and, of course, class action litigation of disparate impact claims. This issue will discuss discovery, certification of class claims, and defenses (such as business necessity) against disparate impact claims. Consequently-but not unintentionally-the issue will include a discussion of data analytics. As you can imagine, removing intent from the equation necessarily focuses disparate impact litigation on statistical analysis.

Additionally, we will discuss preventive measures to avoid disparate impact claims. Training, of course, remains at the forefront in preventing all types of claims including those for disparate impact. The very same data analytics used in prosecuting and defending claims also may be utilized in self-audits to identify potential exposure. We encourage you to take a deeper dive into your company's numbers, dust off the old forms, revisit those policies, and mitigate any potential risks from disparate impact claims.

Stephanie L. Adler-Paindiris

Co-Leader Class Actions and Complex Litigation

Practice Group

Eric R. Magnus

Co-Leader Class Actions and Complex Litigation

Practice Group

David R. Golder

Co-Leader Class Actions and Complex Litigation

Practice Group

Disparate Impact-Discrimination by the Numbers

ABC Discount Superstores prides itself on undercutting any competitor's prices- and on the diversity of its workforce. Always on the cutting edge, the company was among the first in the retail industry to embrace online recruiting and to adopt screening tools to narrow the field of job applicants when hiring for positions at stores nationwide. ABC's use of objective, competency-based tests ensures the candidate pool for any given opening has been whittled down based solely on merit, and without regard to race, gender, or other protected categories. …

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