Duane Morris Class Action Review - 2023 - Report - Page 158
(ii) that Dr. Davidson-Schmich would have received the same percentage pay raises
each year that she actually received, which percentage pay raises would be applied to
the salary assumed under (i). Id. at *3. The defendant argued that the two assumptions
were faulty, and that Dr. George's back pay calculations of the monies allegedly owed to
Dr. Davidson-Schmich should not be admitted because they were unreliable and
amounted to simple arithmetic that a jury would be able to perform. Id. at *4. The court
explained that the unreliable inquiry turned on whether there was a factual basis for the
assumptions underlying Dr. George's opinion that rendered it reliable. The court found
that there was, given testimony regarding other administrators stating that Dr. DavidsonSchmich was underpaid, that market and merit adjustments were not provided to her,
and that two ad hoc university committees that analyzed salary differentials between
male and female faculty concluded that men generally out-earned women by tens of
thousands of dollars in the relevant time period. The court opined that the defendant’s
disagreements with Dr. George's calculations went to the weight and credibility of her
opinion, which may be tested through cross-examination at trial. Id. at *10. In addition,
the court found Dr. George's testimony would be the byproduct of a reliable
methodology and that such testimony would be helpful to a jury. Id. at *11. The court
thereby denied the defendant’s motion in limine.
F.
EEOC Systemic Lawsuits
Systemic litigation remains the Commission’s priority. In 2022, the EEOC received
mixed results in its systemic cases.
In EEOC v. Dolengen, 2022 U.S. Dist. LEXIS 132466 (N.D. Ala. July 25, 2022), the
Commission filed an action on behalf of charging party Vincent Jackson, alleging that
the defendant violated the ADA and the Genetic Information Nondiscrimination Act
(“GINA”) by using a post-offer medical examination that screened out some applicants
based on actual or perceived disabilities during the hiring process. The parties filed
cross-motions for summary judgment on the employees’ GINA claim and the defendant
filed a motion for summary judgment on the ADA claims. The court granted the EEOC’s
motion on the GINA claim, and denied the defendant’s motions. The EEOC asserted
that the defendant required job applicants to undergo a post-offer medical examination
in which applicants were deemed not employable if their corrected vision did not
measure 20/50 or better in both eyes, blood pressure measured 160/100 or higher,
and/or whose blood sugar exceeded a certain threshold. Id. at *22. The EEOC
contended that binocular vision and blood pressure below 160/100 were not job-related
requirements for the general warehouse worker position, and the medical qualification
standards were not consistent with business necessity. Id. at *24. The court held that
viewed in the light most favorable to the EEOC, the summary judgment evidence
established a prima facie screen out claim because either the applicants with these
issues were disabled or the defendant regarded those applicants as disabled, and
therefore the screening standards had an adverse impact on those job applicants. Id. at
*24-25. The court reasoned that a juror could reasonably infer that the group of
allegedly injured applicants could safely perform the essential functions of the job, but
failed to obtain employment due to the defendant’s screening process. The court further
noted that many applicants held similar jobs at other companies despite the medical
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Duane Morris Class Action Review – 2023
