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Class Cert. Sought In Race Bias Suit Over Census Hiring

Law360—Abigail Rubenstein

Plaintiffs accusing the U.S. Census Bureau of unlawfully screening out minority job candidates for temporary posts by considering arrest records in the hiring process asked a New York federal judge on Friday to certify their case as a class action. 

The eight named plaintiffs in the suit filed a motion asking the court to certify a class of African-American and Latino applicants who applied to the bureau for temporary employment during the 2010 decennial census, when the agency was hiring more than one million temporary workers, and were harmed by the policies the lawsuit challenges.

The suit, filed in April 2010, claims that by using arrest records to screen out job applicants, the agency imported the huge disparities in arrest and conviction rates for African-Americans and Latinos into the Census Bureau’s hiring practices, setting up hurdles to employment that disproportionately impacted these groups in violation of Title VII of the Civil Rights Act of 1964. The suit claims hundreds of thousands of applicants were unlawfully screened out by the bureau's policies.

“The Census Bureau excluded many people who, on a fair review of their records, met the bureau’s own standards for having no relevant criminal history,” said Adam Klein of Outten & Golden LLP, who represents the plaintiffs. “Ironically, the bureau promoted its desire in 2010 to reach communities at risk of being undercounted — particularly low-income people of color — by hiring within those communities, yet it erected an unnecessary and discriminatory obstacle for members of those very communities.”

In a memorandum filed with the court, the plaintiffs contended that their Title VII disparate impact claims are well-suited for class certification because they are challenging two uniform and mandatory employment screening practices designed, approved and implemented at the Census Bureau's headquarters level.

The suit targets the Census Bureau's decision to send a letter requiring all applicants who it matched with FBI records databases to produce official court documentation of all arrests or fingerprints within 30 days in order to remain in the applicant pool. The second practice challenged in the suit is the adjudication criteria used in screening applicants out of the eligible applicant pool.

The plaintiffs allege that the letter was ambiguous and failed to provide basic information, which created confusion and set up applicants for noncompliance and rejection.

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The plaintiffs are represented by attorneys from Outten & Golden LLP, the Center for Constitutional Rights, Community Legal Services of Philadelphia, Community Service Society of New York, the Indian Legal Resource Center, LatinoJustice PRLDEF, the Lawyers' Committee for Civil Rights and Public Citizen Litigation Group.

The case is Evelyn Houser et al. v. Penny Pritzker, Secretary, U.S. Department of Commerce, Case Number 1:10-cv-03105, in the U.S. District Court for the Southern District of New York.