Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

Attorney John Williams is well-known in this state for his avid representation of various state workers -- particularly state police officials -- in discrimination matters.  Yesterday, he held a press conference to announce that he will be filing a class action lawsuit in a few weeks challenging the hiring procedures of the Connecticut State Police.

The Hartford Courant has the details in an article this morning:

Racism is so entrenched in the Connecticut State Police that basic hiring practices ensure only a few minority troopers will even enter a training class, never mind be promoted in the ranks, an attorney representing a black troopers' coalition said Thursday.  ...

Only candidates who score at least 85 out of 100 on a written test are chosen to continue training, even though the passing score is 65. That practice discriminates against members of minority groups, Williams said.

Public Safety Commissioner John A. Danaher III vehemently denied Williams' accusations and defended the department's hiring practices, saying they are fair and blind to race. He also said he has taken steps since becoming commissioner to recruit more members of minority groups, including reaching out to more colleges and forming a selections unit that is largely minority.

WTNH has this report on the subject, as does the AP.  Because the complaint hasn't be filed yet, it is too early to tell the exact legal theories and arguments that will be used in the case, but it appears to be following a well-worn path of what are known as "disparate impact" cases.

So what is "disparate impact"? Well, when most of us hear of discrimination cases, they are known as "disparate treatment" cases, not "disparate impact" cases. These cases allege that someone intentionally discriminated against them because of a protected class (race, gender, etc.)

"Disparate Impact" cases are something different.  LawMemo has a nice little summary in its blog:

Disparate impact is the idea that some employer practices, as matter of statistics, have a greater impact on one group than on another.

A good example, taken from the first US Supreme Court Title VII case on the topic: When hiring laborers, the employer required applicants to have a high school diploma. The diploma requirement screened out vastly more blacks than it did whites. Therefore, there was a disparate impact based on race, even though there was no intentional discrimination.

The Supreme Court said that once the employees proved a significant disparate impact, the burden shifted to the employer to prove that the diploma requirement had "a manifest relationship to the employment in question."

Federal legislation enacted in 1991 says that if the employees prove that a practice causes a disparate impact, then the employer must demonstrate that the practice "is job related for the position in question and consistent with business necessity."

The allegations being raised by Attorney Williams are similar. He appears to be saying that the decision to screen applicants based on their score of a written test has a disparate impact on black applicants.  The EEOC has issued some guidance on employment tests that shed further light on the subject:

Moreover, as the EEOC notes, in 1978, the EEOC adopted the Uniform Guidelines on Employee Selection Procedures or “UGESP” under Title VII.  UGESP provided uniform guidance for employers about how to determine if their tests and selection procedures were lawful for purposes of Title VII disparate impact theory:

UGESP outlines three different ways employers can show that their employment tests and other selection criteria are job-related and consistent with business necessity. These methods of demonstrating job-relatedness are called “test validation.” UGESP provides detailed guidance about each method of test validation.  

In general, disparate impact cases are typically long drawn out cases that rely, in good measure on statistical analyses by experts.  They are costly and time-consuming affairs.  Thus, don't expect a quick resolution to the claims raised in this new lawsuit.  Indeed, the State Police will likely spend lots of time arguing that the standards it uses are "job related" and "consistent with business necessity".   Who will prevail? Stay tuned....

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Although I've touched on the issue of personality tests before here and here, I was recently interviewed in the December 2007 issue of Law Office Administrator (published by Ardmore Publishing) about some further specifics. 

In it, I highlight two important points that employers should consider before using them:

1. Why Is the Test Being Used? and,
2. Does the Test Exclude Certain Categories of People?

If you don't know why you are using the test, the obvious followup is how can you possibly use the test effectively if you don't know why you are using it.  Is it to screen out certain applicants? Is it to look for certain intangibles (like team building)?

In addition, you need to understand if the test affects certain classes of people differently. Some differences are okay (you're trying to distinguish lazy employees from driven employees), but if the test results exclude categories of people in protected classes (older workers, for example), then they should not be used.

Personality tests have been around for a while. I would suggest that one reason why they haven't become commonplace is that there are too many variables with them for many employers comfort.  If you do decide to use them, understand the risks ahead of time. 

My colleagues, Ana Salper and Rebecca Brandman, also wrote an article on the EEOC's recent guidance on personality tests, which I covered a few weeks ago .  It's worth a read. 

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These days, everyone seems to be jumping on the wage and hour bandwagon, predicting an endless stream of lawsuits for 2008, just as there was for 2007.  But just as mutual funds preach that "past performance is no guarantee of future success", I would argue that focusing too much on one trend, misses an opportunity to see another.

Indeed, having looked into my crystal ball for 2008,  I believe lawsuits involving reductions in force will be the latest trend to emerge in the next year. (And lest you think me too radical, I do think wage and hour lawsuits will certainly continue as well, albeit in lesser amounts as companies adapt to the litigation trend by addressing wage and hour issues preemptively.)

What is a reduction in force? Really, just a lawyerly way of saying "layoff". Back in the early to mid 1990s, lots of companies went through them.  And the number of lawsuits arising from those reductions went through a major peak in 1995 or so.

But these types of lawsuits rise and fall with the economy.  When the economy is good, lawsuits go down. When it's not so good, they go up. One reason is that when people can find another job quickly (i.e. the unemployment rate is low), then tend not to sue as much.

So what leads me to think that reductions in force lawsuits are on the horizon?

Well, for one, the unemployment rate numbers crept up over 5 percent on Friday.   The second, is that financial sector companies have announced major layoffs in late 2007, as a result of the mortgage crisis.  And when these people get laid off, more dollars are at stake.  And lawsuits typically follow the money. 

Moreover, with the overall economy in a stall pattern at best, companies will continue to resort to the cost-cutting measure they have used before -- layoffs. 

To be sure, the landscape involving RIF lawsuits has changed in the last 15 years; more companies offer severance packages (with accompanying separation agreements) and more companies do statistical analyses to determine if their RIFs have any statistical disparities among protected groups.  And layoffs for 2007, fell to their lowest since 2001. 

But harder times nearly always means more employment claims.

One more factor suggests to me that more lawsuits are on the horizon -- it's much easier for a few employees to band together than in the past. Previously, people would have to use their existing networks to find laid off employees to hear their stories (indeed, outplacement firms were a good source for employees looking to talk with other laid off workers). But now, with the rise of social networking sites, it seems only a matter of time before a group of employees will form a Facebook or MySpace page to compare experiences.  Employees from around the country can share information instantly, making it much easier to figure out if there are trends associated with the layoff that may give rise to a lawsuit. (Unions already have started marshaling the Internet, like this site for a group of Washington Post workers.)

This should give employers some pause; multiple plaintiff cases are always a challenge and expensive, and class actions (where attorneys fees could be recovered) could also be an attractive option.

Will this happen? Let's check back in a year. But absent the economy rocketing ahead in 2008, I don't think it's a stretch to see reduction in force lawsuits making a comeback.

Stay tuned.

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