Duane Morris Class Action Review - 2023 - Report - Page 185
the inference that defendant had a policy or practice of discrimination in its evaluation
process. The EEOC opined that the expert statistical evidence suggested that that the
calculations were statistically significant to support a finding that the disparities between
White employees’ ratings and minority (African American and Asian American)
employees’ ratings could not have happened as a result of chance. The EEOC further
ruled that Plaintiffs met the numerosity and adequacy requirements for class
certification.
F.
Rulings Granting Class Certification In Challenges To Pay Practices
The most significant pay discrimination class action in 2022 that spawned a successful
class certification is Chalmers, et al. v. City Of New York, 2022 U.S. Dist. LEXIS 169111
(S.D.N.Y. Sept. 19, 2022). In certifying a Title VII class action alleging race
discrimination in pay for various positions involving fire protection inspectors in the
City’s Fire Department, the decision shows how plaintiffs’ class action lawyers are using
certification theories to “work around” the seemingly impregnable barrier to class
certification based on Wal-Mart. In Chalmers, over 500 African-American fire protection
inspectors sued the City of New York on the basis that predominately Caucasian
building inspectors received higher pay for performing essentially the same work.
Plaintiffs sued for intentional disparate treatment discrimination and disparate impact
discrimination under Title VII and analogous New York state law. Their union – the
AFSCME District Council 37/Local 2507 – joined in the lawsuit. Plaintiffs alleged that
they and other similarly-situated fire protection inspectors comprised nearly 69% to 72%
of the slots within their department. They asserted that the Fire Department’s pay
policies resulted in lower pay due to intentional discrimination or adverse impact against
African-American fire protection inspectors. After discovery and identification of expert
witnesses, plaintiffs moved for class certification under Rule 23 on behalf of a class of
African-American fire protection inspectors, as well as a sub-class of African-American
associate fire protection inspectors. The court analyzed the parties’ evidentiary
submissions, their competing expert reports, and applicable case law. Over half of the
opinion analyzed the admissibility of the expert evidence under the standards
in Daubert, et al. v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1991). Ultimately, the
court rejected the defense position that the reports of plaintiffs’ experts were
methodologically flawed and therefore insufficient to support the motion for class
certification. In what might best be described as a “deep dive” into the statistical
underpinnings of the experts’ reports. The court opined that the opinions of plaintiffs’
experts were sufficient to survive the City’s Daubert challenges. Id. at *21. At the same
time, the court determined that the defense expert testimony was flawed in multiple
ways, and it granted the majority of Plaintiffs’ Daubert challenges to the City’s expert
evidence. Id. at *36. As to plaintiffs’ class certification motion, the court ruled that
plaintiffs presented a sound theory backed by evidence to establish all of the required
elements under Rule 23. The court found it significant that the identified pay disparities
between African-American and Caucasian workers had existed for nearly 12 years.
Further, the pay gap increased over time from $2,500 on average in 2008 to nearly
$9,000 on average by 2019. The court ruled that this statistical showing alone sufficed
to show a common issue for all class members that defendant knew of the pay disparity
but took no steps to address or remedy it. In addition, the court focused on three
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Duane Morris Class Action Review – 2023
