Duane Morris Class Action Review - 2023 - Report - Page 186
policies and practices that contributed to the alleged unlawful pay disparities. Those
policies and practices included: (i) paying fire inspectors only the minimum required
under their collective bargaining agreement (CBA); (ii) justifying the disparate pay
because of the City’s view that the inspectors were civilian employees as opposed to
uniformed workers entitled to higher pay under the CBA (despite the performance of
basically the same type of work); and (iii) failing to monitor pay practices where two
groups of employees did substantially similar work but were paid differently and one of
the groups had a higher percentage of African-American workers. As to the last
practice, the court deemed it to be tantamount to creation of a system of occupational
segregation with substantially lower pay to protected category employees. For these
reasons, the court granted the motion for class certification. It held that the impact of
these policies and practices could be proved by class-wide proof and that Plaintiffs had
established 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 Orders
Orders denying class certification are subject to discretionary appellate review under
Rule 23(f). In 2022, plaintiffs were successful in overturning one class certification
denial on appeal.
In Simpson, et al. v. Dart, 23 F.4th 706 (7th Cir. 2022), Plaintiffs, a group of correctional
officers, filed a class action alleging that defendant used biased hiring practices that
unlawfully dismissed Black applicants in violation of Title VII of the Civil Rights Act of
1864. The district court denied Plaintiffs’ motion for class certification. On appeal, the
Seventh Circuit reversed and remanded the district court’s ruling. Plaintiffs’ appeal
sought reconsideration of denial of class certification of three sub-classes of applicants
who were required to complete standardized tests as a part of the hiring process. The
Seventh Circuit ruled that the district court incorrectly considered its analysis of the
disparate impact and disparate treatment claims together when it found that the
proposed classes lacked commonality. Further, the Seventh Circuit determined that the
district court erred by looking at the merits of Plaintiffs’ claims; it opined that a ruling on
class certification should be governed solely by the Rule 23 framework. Finally, the
Seventh Circuit opined that plaintiffs sufficiently demonstrated common questions of fact
in that the members of all three sub-classes had been required to take the standardized
tests, and thus led to a common question as to all class members of whether those test
caused disparate impact on the hiring of Black candidates. For these reasons, the
Seventh Circuit reversed and remanded the district court’s ruling denying plaintiffs’
motion for class certification.
III.
Top Employment Discrimination Class Action Settlements
In 2022, the top ten employment discrimination class action settlements totaled $597
million. This represented a significant increase over 2021 when the top ten employment
discrimination settlements totaled $323.45 million. By comparison, in 2020, they totaled
$422.68.
185
© Duane Morris LLP 2023
Duane Morris Class Action Review – 2023
