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Class OK'd In Suit Over Census Bureau's Criminal Screening

Law360—Ben James

A federal magistrate judge in Manhattan certified a class Tuesday in a race bias suit alleging that the process of criminal background checks the U.S. Census Bureau used when selecting temporary workers for the 2010 census unlawfully blocked a slew of black applicants from employment. 

U.S. Magistrate Judge Frank Maas partially granted a class certification bid from the plaintiffs, who claim the way the bureau went about hiring nearly a million temporary workers to conduct the 2010 census discriminated against hundreds of thousands of blacks and Latinos, who have higher arrest and conviction rates than whites.

Judge Maas certified a class of African-American job seekers who claim to have been hurt by a “30-day letter” that gave applicants 30 days to provide official documentation on all arrests and convictions or by the criteria used to evaluate applicants who responded to that letter. 

More than 250,000 blacks and 200,000 Latino applicants received that challenged 30-day letter, and less than 1 percent of those people ended up getting hired, according to plaintiffs' estimates.

The judge drew a distinction between the Census Bureau case and the claims at issue in the U.S. Supreme Court's landmark Dukes v. Wal-Mart decision, which the Census Bureau cited in papers opposing class certification, and noted that Dukes had upped the ante for plaintiffs alleging that subjective decision-making was discriminatory. 

“What distinguishes this case from Dukes ... is the fact that the Census Bureau, unlike Wal-Mart, employed uniform, non-discretionary hiring instruments — the 30-day Letter and the Adjudication Criteria — to exclude applicants from the hiring pool,” Tuesday's ruling said.

Judge Maas also partially granted a motion to dismiss from the Census Bureau, and dismissed three named plaintiffs for lack of standing, but said the plaintiffs could seek to amend their complaint and the class certification order if they could find a suitable Latino class representative. The class was certified for determining liability and injunctive relief, but not damages.

Outten & Golden's Lewis Steel told Law360 on Wednesday that the plaintiffs were "certainly considering" adding a Latino class representative.    

The Census Bureau conducting hiring out of a series of regional offices added a “slight wrinkle” to the commonality analysis, but class members circumstances don't have to be identical as long as their claims can be proven on a classwide basis, the ruling said.

Judge Maas also noted that both sides had vigorously argued about the validity of their respective expert analyses, but said at this point in the case the court didn't have to resolve “battles of the experts.”

“Although the experts obviously reach different conclusions regarding the merits in this case, the fact that both sides’ experts are able to provide classwide answers to the liability question suffices to satisfy the commonality requirement,” his decision said.

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The plaintiffs sought class certification at the end of June 2013.

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 affected these groups in violation of Title VII. 

The U.S. Equal Employment Opportunity Commission warned the Census Bureau in 2009 that its criminal background screening process could violate federal law, the plaintiffs said. 

Outten & Golden's Adam Klein, an attorney for the plaintiffs, said in a statement that they were looking forward to a trial in the lawsuit.

“The evidence will show the Census Bureau excluded many people who, on a fair review of their records, met federal standards for having no relevant criminal history. It’s ironic that while the Bureau promoted its desire in 2010 to better reach communities at risk of being undercounted — particularly low-income people of color — by hiring within those communities, it then discriminated against members of those very communities,” said Klein.  

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The plaintiffs are represented by Adam Klein, Lewis Steel, Ossai Miazad ... of Outten & Golden LLP and lawyers from the Indian Law Resource Center, the Lawyer’s Committee for Civil Rights Under Law, Community Legal Services Inc., the Community Service Society, the Public Citizen Litigation Group, LatinoJustice PRLDEF and the Center for Constitutional Rights.

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.