Tag Archives: discrimination

Illinois District Court Refuses to Certify Class Based on Anti-harassment Policy

By Greg Mersol on January 4, 2023 Posted in Anti-harassment

Most employers today have anti-harassment policies covering race, gender and other types of discrimination to help comply with state and federal antidiscrimination legislation and to take advantage of the affirmative defense described in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). But what … 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

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

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

Court Dismisses Disparate Impact Class Claims Due to Limited EEOC Charge

By Greg Mersol on February 22, 2017 Posted in EEOC

Disparate impact cases are different in kind from the far more common disparate treatment claims that are the staple of single-plaintiff discrimination cases. Disparate treatment claims, of course, are ones in which an employee contends that he or she was treated less favorably than others on account of a protected trait, such as sex, race … Continue Reading

Supreme Court Continues Sanctions Litigation Against the EEOC

By Greg Mersol on May 19, 2016 Posted in EEOC

A slap in the face, maybe, after 11 years Back in 2005, a prospective driver for a trucking company filed a charge with the EEOC contending that two trainers sexually harassed her during an over-the-road trip. That charge triggered a lawsuit in which the EEOC went on to claim that over 250 other women had been … 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

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

Massive EEOC Class Action Slashed to Two Claims on Appeal

By Greg Mersol on March 21, 2012 Posted in Discrimination

On February 22, 2012, the Eighth Circuit handed the EEOC a major defeat in a putative class-wide sexual harassment case it had brought against a trucking company. EEOC v. CRST Van Expedited, Inc.pdf, Case Nos. 09-3764/09-3765/10-1682 (8th Cir. Feb. 22, 2012). While the court vacated, at least for the present, a $4.5 million sanction against … Continue Reading