It is a truism that complex litigation often becomes a battle of the experts, and this applies with full force to class action employment discrimination cases. Skilled counsel will anticipate this fact and early on identify and develop not only the right experts, but thoroughly assess what data and information is available for analysis.
In one high-profile discrimination suit, Pippen v. State of Iowa, et. al., Case No. 12-0913 (Iowa July 18, 2014), the Supreme Court of Iowa last week dismissed plaintiffs’ race discrimination class claims because they had failed to challenge any particular employment practice and failed to demonstrate that they were unable to isolate any particular employment practice as problematic using the available data. The end result is the dismissal of what is believed to be the largest and most high profile employment-related class action ever filed in Iowa.
The plaintiffs in Pippen v. State of Iowa, who are African-American, filed suit in 2007 alleging that the State failed to enforce its own statutory and regulatory policies and thereby denied African-Americans equal opportunities for employment. The plaintiffs did not contend that the discrimination was intentional, but rather alleged that it was a “natural unintended consequence of the State’s failure to follow rules.” Id. at 5. A class was certified by stipulation in 2010 with respect to disparate impact in hiring and promotion, and ‒ unlike the great majority of class discrimination cases ‒ the case went to trial in 2011. After a 17-day trial, the lower court found in favor of the State and dismissed the claims, and plaintiffs appealed. On July 18, 2014, the Supreme Court of Iowa affirmed the decision of the lower court.
The Court’s Decision
At issue in Pippen were the hiring practices of 37 different departments within the executive branch of the State of Iowa, each with its own hiring authority. In discovery, the State produced electronic data from a central database containing information on every applicant for hire and promotion, as well as paper files maintained by each department. The case turned on whether plaintiffs had analyzed a specific employment practice as opposed to an overall hiring system, and, if not, whether the plaintiffs were incapable of doing so with the data produced by the State.
After a lengthy description of the history of civil rights employment legislation, the Court explained that the Civil Rights Act of 1991 requires a plaintiff to challenge a particular employment practice or, in the alternative, to “demonstrate why an employer’s decision-making process is ‘not capable of separation for analysis.’” Id.at 39. Plaintiffs conceded that they had not challenged a specific employment practice, but Plaintiffs argued that defendants had failed to maintain records on each separate employment practice such that “statistical analysis of any separate element was impossible.” Id. at 32. According to Plaintiffs, the data did not reflect whether a particular candidate was screened or scored, for example, so it was impossible to analyze a particular employment practice. The State, on the other hand, argued that plaintiffs had performed a system-wide analysis by their own choice and not because the data was incapable of being broken down.
In analyzing the question, the Court acknowledged that “the fact that the plaintiffs were provided with lots of [electronic] data that can mechanically be sliced and diced in numerous ways proves nothing; massive data can always be divided into countless different piles.” Id. at 44. The pertinent question was whether plaintiffs had demonstrated that the data “could not be divided into smaller, better defined subsets of specific employment practices with sufficient decision points to be capable of statistical analysis.” Id. at 45. Applying this standard, the Court found that plaintiffs failed to satisfy this burden because they had not shown that the departmental paper files were incapable of analysis with respect to particular employment practices. In fact, plaintiffs’ own social science expert, Anthony Greenwald, testified that the paper files were “a gold mine that hasn’t been analyzed.” Id. at 48. The Court therefore affirmed the judgment and dismissed the case.
Implications For Employers
The Pippen decision is helpful and persuasive authority for employers seeking to remind courts that plaintiffs have the burden of challenging a particular employment practice or demonstrating that it would be impossible to do so. And in an area of law where cases often rise or fall on expert analysis, Pippin is stark reminder for parties to carefully assess and strategically consider the available data.