policies and practices that contributed to the alleged unlawful pay disparities. Thosepolicies and practices included: (i) paying fire inspectors only the minimum requiredunder their collective bargaining agreement (CBA); (ii) justifying the disparate paybecause of the City’s view that the inspectors were civilian employees as opposed touniformed workers entitled to higher pay under the CBA (despite the performance ofbasically the same type of work); and (iii) failing to monitor pay practices where twogroups of employees did substantially similar work but were paid differently and one ofthe groups had a higher percentage of African-American workers. As to the lastpractice, the court deemed it to be tantamount to creation of a system of occupationalsegregation with substantially lower pay to protected category employees. For thesereasons, the court granted the motion for class certification. It held that the impact ofthese policies and practices could be proved by class-wide proof and that Plaintiffs hadestablished all of the prerequisites to class certification (numerosity, commonality,typicality, adequacy of representation, predominance, and superiority per Rule 23)G.Appellate Decisions Reversing Class Certification OrdersOrders denying class certification are subject to discretionary appellate review underRule 23(f). In 2022, plaintiffs were successful in overturning one class certificationdenial on appeal.In Simpson, et al. v. Dart, 23 F.4th 706 (7th Cir. 2022), Plaintiffs, a group of correctionalofficers, filed a class action alleging that defendant used biased hiring practices thatunlawfully dismissed Black applicants in violation of Title VII of the Civil Rights Act of1864. The district court denied Plaintiffs’ motion for class certification. On appeal, theSeventh Circuit reversed and remanded the district court’s ruling. Plaintiffs’ appealsought reconsideration of denial of class certification of three sub-classes of applicantswho were required to complete standardized tests as a part of the hiring process. TheSeventh Circuit ruled that the district court incorrectly considered its analysis of thedisparate impact and disparate treatment claims together when it found that theproposed classes lacked commonality. Further, the Seventh Circuit determined that thedistrict court erred by looking at the merits of Plaintiffs’ claims; it opined that a ruling onclass certification should be governed solely by the Rule 23 framework. Finally, theSeventh Circuit opined that plaintiffs sufficiently demonstrated common questions of factin that the members of all three sub-classes had been required to take the standardizedtests, and thus led to a common question as to all class members of whether those testcaused disparate impact on the hiring of Black candidates. For these reasons, theSeventh Circuit reversed and remanded the district court’s ruling denying plaintiffs’motion for class certification.III.Top Employment Discrimination Class Action SettlementsIn 2022, the top ten employment discrimination class action settlements totaled $597million. This represented a significant increase over 2021 when the top ten employmentdiscrimination settlements totaled $323.45 million. By comparison, in 2020, they totaled$422.68.185© Duane Morris LLP 2023Duane Morris Class Action Review – 2023
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