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

Outten & Golden LLP
April 19, 2016

NEW YORK “” Penny Pritzker, the Secretary of the U.S. Department of Commerce, has entered into a landmark class action settlement with African American and Latino plaintiffs whose applications for more than a million temporary jobs for the 2010 decennial census were rejected by the Census Bureau’s flawed screening process and an often inaccurate and incomplete FBI arrest and convictions database to pass over job applicants who may have been fully qualified for the jobs, Outten & Golden LLP and co-counsel said today.

During six years of hard-fought litigation, the plaintiffs asserted that the Census Bureau’s flawed procedures 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.

In a federal court filing today, class counsel will ask the court to preliminarily approve the settlement, issue an order requiring the notification of all class members of the settlement and set a date for a final approval hearing.

Adam Klein, the lead attorney for the plaintiffs and the head of the class action practice group at Outten & Golden LLP, said, “This settlement will require 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.”

In July 2014, the court – for purposes of a liability finding – certified a class of roughly 450,000 African Americans and Latinos who were denied employment because of the Census Bureau’s criminal background check policies and practices.

The key to today’s settlement, Mr. Klein said, is not the amount of money Census is paying as part of the settlement, which is $15 million. Instead, he said, it is the groundbreaking approach to designing a properly validated method of criminal history screening for the 2020 decennial census hiring that minimizes the impact of African Americans and Latinos. To develop criteria that limit the use of criminal records in determining applicant suitability, Census will employ two experienced industrial organizational psychologists, one of whom served as the plaintiffs’ expert during this case and the other chosen by Census. Both experts have been tasked with constructing a hiring selection process that is intended to greatly reduce the number of applicants who are refused employment based on prior interactions with the criminal justice system.

Precious Daniels, one of the named plaintiffs in the case, said, “My primary motivation in serving as a named plaintiff was to achieve a change to Census’s hiring practices which resulted in my rejection and that of hundreds and 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, “To end the cycle of mass incarceration, 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, “The settlement comes on the eve of the U.S. Justice Department-designated National Reentry Week (April 24-30). Many private employers use overbroad criminal background screens to deny jobs to the millions of persons who have criminal records, further ensuring that they are consigned to a lifetime of struggle to find work. We are hopeful that employers will respond to the Government’s call, determining that it makes more sense to adopt fair and reasonable hiring practices rather than risk expensive litigation and exposure as a bad corporate citizen whose practices prevent qualified individuals from re-entering society, benefiting their communities, families and themselves.”

The final settlement will be subject to a fairness hearing and court approval. 

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 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 class members are: 1) all African American applicants who sought temporary employment during the 2010 Decennial Census and claim to have been harmed by Census’s 30-day Letter, its Adjudication Criteria, or both; and 2) all Latino applicants who sought temporary employment during the 2010 Decennial Census and claim to have been harmed by Census’s 30-day Letter, its Adjudication criteria, or both.

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.