Seyfarth Synopsis: In a class action alleging that the criminal background policy of Washington D.C.’s local transit authority had a disparate impact on African-Americans, a federal district court recently certified three classes of African-American employees and applicants despite the employer’s workforce being 75% African-American. The ruling – in Little v. Washington Metropolitan Area Transit Authority, No. 14-1289, 2017 U.S. Dist. LEXIS 48637 (D.D.C. Mar. 31, 2017), is a “must read” for employers that use hiring screens.

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One of the hottest areas in workplace class actions involves criminal background checks used by employers. On one end of the spectrum, employers want to be sure they are not subjecting their businesses, employees, and clients to any potential criminal conduct by their own workers. On the other hand, many prospective employees with criminal backgrounds may have been adequately rehabilitated through the criminal justice system and merely need an opportunity to prove they can be counted on as an employee. In Little v. Washington Metropolitan Area Transit Authority, No. 14-1289, 2017 U.S. Dist. LEXIS 48637 (D.D.C. Mar. 31, 2017), Plaintiffs alleged that a criminal background check policy used by the Washington Metropolitan Area Transit Authority (“WMATA”) to screen candidates and employees was facially neutral, but had a disparate impact on African-Americans. After the Plaintiffs moved for class certification , Judge Collyer of the U.S. District Court for the District of Columbia granted Plaintiffs’ motion in part and certified three classes pursuant to Rule 23(b)(2) and 23(c)(4), finding that Plaintiffs had satisfied Rule 23’s requirements with respect to liability and the availability of injunctive or other declaratory relief, but that the proposed classes failed to meet the predominance requirement of Rule 23(b)(3) because the case involved “more than just the individual determination of damages.” Id. at *65.

The Little ruling puts employers on notice that even if their workforce is predominately made up by one protected class, their criminal background policies can still be challenged as having a disparate impact on that class for purposes of class certification.

Case Background

WMATA, the primary public transit agency for the Washington D.C. metropolitan region, adopted its Policy 7.2.3 to govern how and when individuals with criminal convictions can obtain or continue employment with WMATA and its contractors and sub–contractors. Id. at *4-5. Plaintiffs alleged that although the policy was facially neutral, it had a disparate impact on African-Americans. WMATA argued that the policy was adopted as a business necessity. Id. at *6. Further, WMATA argued that the make-up of its employee and contractor workforce, which included 12,000 individuals, was 75% African-American, thus demonstrating that no discrimination occurred.

Plaintiffs moved for certification of a hybrid Rule 23(b)(2) and Rule 23(b)(3) class, seeking both injunctive and individual monetary damages for the alleged discriminatory policy. Id. at *16. Alternatively, if the Court determined monetary damages were not suitable for class-wide determination, Plaintiffs proposed certification under Rule 23(b)(2) for liability and injunctive relief determinations and the application for Rule 23(c)(4) to allow the question of liability to be answered on a class-wide basis (but with individual hearings on damages owed to each specific class member).

The Court’s Decision

The Court held that certification was proper under Rule 23(b)(2) and Rule 23(c)(4) and certified three classes for a determination of liability and injunctive relief under Rule 23(b)(2), but withheld any individual damages determinations. Id. at *46. Beginning with its Rule 23(a) analysis, the Court first noted that as WMATA did not dispute Plaintiffs’ assertion that the overall class included over 1,000 individuals, and each sub–class included at least 200, the Court found that Plaintiffs satisfied the numerosity requirement. Further, the Court determined that Plaintiffs satisfied the commonality requirement since the policy at issue was mandated for non-discretionary application to all hiring decisions regard the class members, regardless of whether the candidates applied for positions with different contractors, sub–contractors, or directly with the WMATA. Id. at *50. Regarding typicality, the Court concluded that the class representatives’ claims were typical of the class as they addressed each part of the policy with the exception of one policy appendix, for which Plaintiffs did not present a class representative. Finally, regarding adequacy, the Court rejected WMATA’s argument that the proposed named Plaintiffs were inadequate because they lacked standing, noting the merits of their allegations were not to be considered as part of the class certification calculus. Id. at *56-57.

Next, the Court analyzed Plaintiffs’ motion for certification of a hybrid Rule 23(b)(2) and (b)(3) class. WMATA argued that Plaintiffs failed to identify which parts of Policy 7.2.3 produced a disparate impact, and their failure to identify the particular challenged employment practice prohibited certification. Noting that each appendix to the policy constituted a separate employment practice, and that Plaintiffs identified three appendices to the policy that allegedly had a disparate impact on African-Americans, the Court found that Plaintiffs satisfied their burden under Rule 23(b)(2). Id. at *59-60.

However, the Court held that Plaintiffs failed to meet the predominance requirement under Rule 23(b)(3) and therefore refused to certify the class for monetary damages. Id. at *65-66. Specifically, the Court reasoned that the case involved “more than just the individual determination of damages” – namely, the trier of fact must also determine, for each individual class member, whether that class member was not hired or fired due to the Policy 7.2.3., or for some other reason. Accordingly, the Court granted in part Plaintiffs’ motion for class certification and certified three classes under Rule 23(b)(2) and Rule 23(c)(4) with respect to liability and the availability of injunctive relief.

Implications For Employers

This ruling illustrates that even if a majority of an employer’s workforce is part of a protected class, an employer’s policies potential can still be considered to have a disparate impact on that class for purposes of Rule 23 class certification. Plaintiffs will likely use this ruling in subsequent motions for class certification in class actions involving the disparate impact of criminal background policies. As such, employers should be cognizant of the effect of its policies, and continue to ensure they are neutrally applied.