Archives: Discrimination

D.C. District Court Refuses to Issue Preliminary Injunction Against Alleged Retaliation in Sex Discrimination Class Action

By Greg Mersol on July 29, 2020 Posted in Discrimination

In the 1991 movie “Silence of the Lambs” and the book on which it was based, FBI trainee Clarice Starling is tasked with working with the now-infamous Hannibal Lector to find a serial killer. That movie won a Best Actress Oscar for Jodie Foster as well as Oscars for Anthony Hopkins and the movie’s scriptwriters … Continue Reading

Illinois District Court Denies Certification of Discrimination Action Due to Problematic Class Representatives

By Greg Mersol on June 11, 2020 Posted in Discrimination

A key premise of a class action is that a court can, in essence, review the merits of the class representative’s claims and apply the result of that review across the class as a whole. This concept is most readily found in Rule 23(a)(2) (commonality), (a)(3)(typicality) and (a)(4)(adequacy of representation), but it also finds its way into … Continue Reading

California District Denies Certification of Race Claim Involving Claimed “English-Only” Restaurant Policy

By Greg Mersol on January 23, 2020 Posted in Class Certification, Discrimination

While class actions may prove lucrative for the plaintiffs who bring them, most cases just aren’t suitable for class action treatment and many would likely fare far better if the plaintiffs simply limited themselves to a single employee or location. Case in point. In Guzman v. Chipotle Mexican Grill, Inc., Case No. 17-cv-02606-HSG (N.D. Cal. … Continue Reading

Ninth Circuit (Barely) Acknowledges the Dukes Case in Discrimination Class Action Litigation

By Greg Mersol on January 13, 2020 Posted in Discrimination

Ten years ago, the Ninth Circuit upheld the certification of a sprawling nationwide class action in Dukes v. Wal-Mart Stores, Inc., only to see that decision overturned a year later by the Supreme Court. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). In the intervening decade, the Supreme Court similarly up-ended the Ninth … Continue Reading

Seventh Circuit Holds That Opt-Outs Lack Standing To Challenge Settlement

By Greg Mersol on October 7, 2019 Posted in Discrimination

What were they thinking, anyway? Eighteen months ago, a group of African American financial advisors brought suit against JPMorgan Chase for alleged race discrimination and retaliation. They sought to assert claims on behalf of a class of 273 individuals. The parties immediately entered into settlement discussions and reached an agreement to resolve the claims for … Continue Reading

Title VII’s Charge Requirement Isn’t Jurisdictional, But It Can Still Be Fatal

By Greg Mersol on June 3, 2019 Posted in Discrimination, EEOC

Some cases look a lot more important at first glance than what they turn out to be. Case in point, today’s decision in Fort Bend County, Texas v. Davis, Case No. 18-525 (U.S. Sup. Ct. June 3, 2019). The Court’s holding was that Title VII’s charge-filing requirement is not jurisdictional. In the end, however, the … Continue Reading

Southern District of New York Denies Certification of Nationwide Case Alleging Sex Discrimination

By Greg Mersol on December 7, 2018 Posted in Discrimination

A claim is brought against a large employer contending that, although personnel decisions are made locally, it discriminates in pay and promotions on the basis of sex nationwide. Sound familiar? That was, essentially, the claim in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), that the Supreme Court held should not have been certified. … Continue Reading

Unanimous Supreme Court Holds EEOC Must Conciliate

By Greg Mersol on May 4, 2015 Posted in Discrimination, EEOC

. . . just not very much. Title VII was passed with a strong bias toward voluntary, non-litigation methods of dispute resolution. Indeed, the statute requires that even when the EEOC has found probable cause, the Commission “shall endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. … Continue Reading

Fourth Circuit Rejects EEOC Expert Report Riddled With Errors

By Greg Mersol and Pat Muldowney on March 18, 2015 Posted in Discrimination, EEOC

We’ve written before on the questionable statistics used by the U.S. Equal Employment Opportunity Commission (EEOC) in other cases, and a recent court of appeals case involving background checks suggests that the EEOC is continuing to use such methods despite scathing criticism from courts. On February 20, 2015, the U.S. Court of Appeals for the … Continue Reading

Sixth Circuit Remands Memphis Title VII Disparate Impact Case, Yet Again

By Greg Mersol on November 26, 2014 Posted in Discrimination, Title VII

It’s hard not to feel sorry for the residents of Memphis, Tennessee. Depending on which source you consult, its violent crime rate hovers between three and four times the national average, and various publications describe it as one of the top 10 most violent cities in the United States. As we’ve commented previously, its fire department has … Continue Reading

District Judge Allows Rail Union to Side Step Rule 23 with Pattern-Or-Practice Claim

By John Lewis on October 14, 2014 Posted in Discrimination, Rule 23, Title VII

A federal district judge in Hammond, Indiana, has permitted a rail union to pursue injunctive remedies in a Title VII pattern-or-practice discrimination claim on behalf of its black members without compliance with Rule 23. In Brotherhood of Maintenance of Way Employees v. Ind. Harbor Belt R.R. Co., (Case No. 2:13-cv-00018, 2014 WL 4987972,October 7, 2014), … Continue Reading

Ninth Circuit Reverses District Court’s Refusal To Certify Age Discrimination Class

By Greg Mersol on May 7, 2014 Posted in Discrimination, Rule 23

The most famous, if fictional, San Francisco police Inspector was, of course, Inspector Harry Callahan of the Dirty Harry succession of Clint Eastwood films. The first Dirty Harry movie came out in 1971when its star, known then chiefly by his roles in westerns, was 41 years old. There were a total of five films with … Continue Reading

Fourth Circuit Affirms Sanctions Against the EEOC In Action Fraught with Delays

By Greg Mersol on April 7, 2014 Posted in Discrimination, EEOC

Many employers who have dealt with the EEOC in large cases suffer frustration over inexplicable delays combined with at times unreasonable requests for information and/or relief. In a recent case from the Fourth Circuit, that kind of conduct led not only to a dismissal of the underlying claim by laches, but to an attorney fee … Continue Reading

Fourth Circuit Argues With Itself Over Dukes’ Application

By Greg Mersol on October 24, 2013 Posted in Discrimination, Rule 23

While commentators can, and often do, debate fine points regarding the technical elements of a class action claim, the result in a given case is often dictated by a more fundamental concern. That issue is whether the judge views class action treatment as an exception to the general rule or, instead, as a fundamental right. … Continue Reading

Multiple Courts Criticize EEOC Behavior In Class Cases

By Greg Mersol on October 7, 2013 Posted in Discrimination, EEOC, Retail, Title VII

Over the last 5 years, the EEOC has become increasingly aggressive in the bringing and pursuit of broad initiatives and, in particular, class litigation. Cynics can debate whether this springs from a desire to make a difference or one to bully employers through litigation costs into abandoning lawful practices that are not to its liking, … Continue Reading

Michigan District Court Dismisses Disability Disparate Impact Class Claim

By Greg Mersol on September 27, 2013 Posted in Discrimination

Plaintiffs cannot use a disparate impact theory unless challenging a facially neutral policy. Class action lawsuits alleging disability discrimination are uncommon, and those involving disparate impact claims are less common still. This is due, in part, to the fact that unlike other types of discrimination claims, a claim of disability discrimination typically raises questions about … Continue Reading

Sixth Circuit Affirms Injunction In Strange Failure To Promote Case

By Greg Mersol on July 31, 2013 Posted in Discrimination, Title VII

Here’s a weird one. Employers originally began using standardized tests to try to find a more objective and hopefully accurate way to select the best candidates for promotion and hire. Over time, however, such tests have also been used to avoid disputes, contractual, statutory, or otherwise, over whether they have selected the right candidate. Put … Continue Reading

Sixth Circuit Affirms Refusal to Certify Disparate Impact Sex Discrimination Case

By Greg Mersol on May 31, 2013 Posted in Discrimination, EEOC, Rule 23

On May 30, 2013, the Sixth Circuit issued its decision in Davis v. Cintas Corporation, Case No. 10-1662 (6th Cir. May 30, 2013), in which it upheld a district court’s refusal to certify a disparate impact Title VII case, but interestingly found that questions of fact precluding summary judgment on the lead (and now only) … Continue Reading

Pennsylvania Court Denies Certification Of Disability Discrimination Claims

By Greg Mersol on April 26, 2013 Posted in Discrimination, Rule 23

In the vast majority of discrimination cases, there is little dispute over whether the plaintiff is actually in a protected group. For example, in sex discrimination cases, for the most part, they are either male or female; in age cases either over or under 40. Despite the demographic changes in the country, there are few … Continue Reading

Ohio District Court Dismisses EEOC Suit Challenging Credit Check Policies

By Greg Mersol on February 13, 2013 Posted in Discrimination, EEOC

Anyone looking for a case rich in irony need look no further than EEOC v. Kaplan Higher Learning Edu. Corp., Case No. 1:10 CV 2882 (N.D. Ohio, Jan. 28, 2013). Kaplan provides, among other services, online college training, and it assists its students with obtaining financial aid from the United States Department of Education. In … Continue Reading

Tenth Circuit Affirms Refusal To Certify Sex Discrimination Class

By Greg Mersol on January 24, 2013 Posted in Discrimination, Title VII

Hilti, Inc. sells power equipment for use in construction sites. A quick trip through its website (http://www.us.hilti.com) reveals tools most people wouldn’t have in their home workshops, such as 1100-watt demolition hammers, gas-powered fasteners, and cordless drywall screwers. Given this product mix, as one might expect, an important part of its sales consists of direct … Continue Reading

Sixth Circuit Gets it Wrong on Title VII Pattern or Practice Claims

By Greg Mersol on November 26, 2012 Posted in Discrimination

The “frappe” button on a blender is useful for all kinds of recipes when you want to mix things up, but it, until now, has not been considered a viable rule of statutory construction. We’ve written before (previous post) about Title VII’s structure and, to a degree, its legislative history. The statute provides a number … Continue Reading

EEOC Ordered To Produce Class Members For Deposition (Again)

By Greg Mersol on November 20, 2012 Posted in Discrimination

We’ve written in the past that the EEOC, at times, lives by the adage “don’t let the facts get in the way of a good story.” A recent case demonstrates that the facts are, indeed, relevant and that the EEOC must permit the employer discovery to test the factual theories it presents in litigation. In … Continue Reading

Seventh Circuit Reverses Certification of Construction Workers’ Race Discrimination Classes  Based Upon Wal-Mart

By John Lewis on August 13, 2012 Posted in Discrimination, Retail

The U.S. Court of Appeals for the Seventh Circuit, in an opinion written by Chief Judge Frank Easterbrook, reversed an Order certifying two multi-site classes of black construction workers alleging race discrimination based upon the U.S. Supreme Court’s decision in Wal-Mart Stores v. Dukes, 131 S. Ct. 2541 (2011). In Bolden v Walsh Construction.pdf, (No. … Continue Reading