Outten & Golden LLP: Court Approves Landmark Settlement in Census Bureau Discrimination Class Action

PRNewswire—Outten & Golden LLP
September 21, 2016

A New York federal court approved the settlement of a landmark class action in which African American and Latino job applicants alleged illegal background check policies and practices at the U.S. Census Bureau denied them access to more than a million temporary jobs for the 2010 decennial census, Outten & Golden LLP and co-counsel said today.

Adam Klein, the lead attorney for the plaintiffs and the head of the class action practice group at Outten & Golden LLP, said, “This historic settlement requires the Census Bureau to replace its arbitrary and racially discriminatory use of criminal records and develop a rational job-related method to determine whether an applicant has a criminal history which justifies his or her rejection from these essentially entry-level jobs.”

During six years of hard-fought litigation, the plaintiffs asserted that the Census Bureau’s flawed procedures – which relied on an often inaccurate and incomplete FBI arrest and convictions database – violated Title VII of the 1964 Civil Rights Act because of their substantial adverse impact on African Americans and Latinos who were arrested at much higher rates than whites, often for the same crimes, such as minor drug possession and use.

Penny Pritzker, the Secretary of the U.S. Department of Commerce, agreed to the settlement in April. In 2014, the court certified a class of roughly 400,000 African Americans and Latinos, who asserted that the Census Bureau erected unreasonable, largely insurmountable, hurdles for applicants with arrest records – regardless of whether the arrests were decades old, for minor charges, or led to criminal convictions.

Mr. Klein added, “This settlement comes at a critical time when the Census Bureau is planning for the 2020 census and developing the criteria for hiring hundreds of thousands of temporary workers. Instead of having its own staff set the criteria, under this settlement, outside professionals will develop the criteria, which we anticipate will open up many thousands of jobs to applicants with records.”

Approved by the Hon. Frank Maas, the $15 million settlement contains a $5 million fund to help African American and Latinos who were rejected for the 2010 Census because of criminal records or arrests clear up their records to ease their ability to obtain jobs in the future. Government records show that more than 70 million people in the U.S. have been arrested, but at least 35 percent of all arrests nationwide never lead to prosecutions or convictions.

Precious Daniels, one of the named plaintiffs in the case, said, “My primary motivation in this important case was to achieve a change to Census’s hiring practices which resulted in my rejection and that of thousands of other African Americans and Latinos. These jobs make a meaningful difference in our lives. I am proud to have been a part of this collective effort to bring about these changes.”

In addition, the settlement will offer class members two options. The first option is designed to help class members correct mistakes in their criminal history records, to help ensure that they are not rejected by future employers based on incorrect information. A portion of the settlement fund will be used to set up a “Records Assistance Program” for this purpose, which will be administered by Cornell University’s College of Industrial and Labor Relations. The second option involves a notification procedure from the Census Bureau designed to give class members advance notice and information related to hiring for the temporary jobs which will become available for the 2020 census.

Kristen Clarke, president and executive director of the Lawyers’ Committee for Civil Rights Under Law, said, “We must eliminate discriminatory and unfair barriers to reentry faced by people with criminal histories. This important settlement helps send a strong message to other employers that no job seeker should be automatically excluded from consideration for a job solely because of a criminal record.”

Ossai Miazad, attorney for the plaintiffs and the head of the discrimination and retaliation practice group at Outten & Golden LLP, said, “This settlement commits the federal government, the nation’s largest employer, to a hiring process for one of its largest and most important operations – the decennial census – that does not unfairly and arbitrarily deny access to jobs to millions of Americans who have had some interaction with the criminal justice system.”

Miazad added, “We anticipate that both private companies and government agencies will develop new ways to weigh employers’ need to ensure that applicants with criminal records will have a fair chance when they seek employment opportunities, both to their benefit, the benefit of their communities, and to the general as employment of those with past records has been shown to greatly reduce recidivism.”

The legal team for the plaintiffs includes Mr. Klein, Justin M. Swartz, Lewis M. Steel, Ms. Miazad, Sally J. Abrahamson, and Deirdre Aaron, of Outten & Golden LLP; Sharon Dietrich of Community Legal Services of Philadelphia; Judy Whiting of Community Service Society of New York; Robert T. Coulter, of the Indian Law Resource Center, of Helena, Mont.; Jackson Chin of LatinoJustice PRLDEF, of New York; Ray P. McClain of the Lawyers Committee for Civil Rights Under Law, of Washington, D.C.; and Darius Charney of the Center for Constitutional Rights of New York.

The named plaintiffs in the case are Anthony Gonzalez, of Riverview, Fla.; Precious Daniels, of Detroit, Mich.; Alexis Mateo, of New York; Chynell Scott, of Philadelphia; Scotty Desphy, of Philadelphia; and Edward Zahnle, of Portland, Ore. The two original named plaintiffs who initiated this lawsuit were Evelyn Houser, of Philadelphia, and Eugene Johnson, of New York.

The plaintiffs’ legal team recognizes the extraordinary assistance of mediator Hunter R. Hughes, III, of Atlanta, and the named plaintiffs Ms. Houser and Mr. Johnson, both of whom passed away during the pendency of this lawsuit.

The case is “Anthony Gonzalez, et al., v. Penny Pritzker, Secretary, U.S. Department of Commerce,” No. 1:10-cv-03105-FM, in the U.S. District Court, Southern District of New York.

UPDATE: Text of the final approval order is available here.

Media Contact: Erin Powers, Powers MediaWorks LLC, for Outten & Golden LLP, 281.703.6000, @email.