A class action lawsuit alleging the U.S. Census Bureau unlawfully screened out hundreds of thousands of African Americans and Latinos from temporary jobs for the 2010 census is closer to federal court certification, Outten & Golden LLP and co-counsel said today.
On Friday, the legal team for the eight named plaintiffs in the case filed a motion for class certification in New York federal court. In March 2012, the court denied the Government's request to dismiss the class action allegations in the unprecedented lawsuit, pursued under Title VII of the Civil Rights Act of 1964, and discovery began.
The lawsuit alleges the Census Bureau presumed job applicants with arrest records – regardless of whether the arrests were decades old, for minor charges, or led to criminal convictions were unfit work as temporary employees. Government records show that more than 70 million people in the U.S. have been arrested, but more than 35 percent of all arrests nationwide never lead to prosecutions or convictions. National statistics also confirm that African-Americans and Latinos suffer a disproportionately high percentage of arrests as compared to Whites.
The lawsuit, which was filed in April 2010, alleges that in hiring nearly one million temporary workers, most of whom went door to door seeking information from residents, the Census Bureau erected unreasonable, largely insurmountable, hurdles for applicants who it matched against FBI rap sheets. Most of these job applicants received a form letter from the government, advising them to provide official court records of all arrests within 30 days. In seeking to certify a class action, Plaintiffs allege that the "30-day" letter’s ambiguity and failure to provide basic information such as the arrests for which documentation was requested created confusion and set up applicants for non-compliance and rejection.
According to the motion for class certification, “Census’s adjudication criteria went beyond those used by other federal agencies and directly contravened the U.S. Equal Employment Opportunities Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII.” In July 2009, the EEOC advised the Census Bureau that its criminal background screening process could violate federal law.
The legal team for the plaintiffs includes Outten & Golden LLP, Center for Constitutional Rights; Community Legal Services of Philadelphia; Community Service Society, of New York; Indian Legal Resource Center, of Helena, Mont.; LatinoJustice PRLDEF, of New York; Lawyers Committee for Civil Rights, of Washington, D.C.; and Public Citizen Litigation Group, of Washington, D.C.
Adam Klein, of Outten & Golden LLP, said, “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. 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.”
Evelyn Houser, a named plaintiff, said, “I worked for Census in 1990 and I’ve lived in my Philadelphia neighborhood for decades. I’m retired, but I wanted to continue contributing to my community.” More than 30 years ago, Ms. Houser was arrested and completed a diversionary program without being formally convicted of any crime.
Ossai Miazad, of Outten & Golden LLP, said, "The federal government warns employers that if they are going to disqualify job applicants based on criminal history records they must narrowly and carefully devise their screening process precisely because of the well-documented disparities in the criminal justice system, and yet its own criminal background check screening process abandoned this principle and branded hundreds of thousands of applicants ineligible in one fell swoop."
If certified, the class action would cover African American and Latino applicants who applied for temporary employment during the 2010 decennial and were harmed by the Census Bureau’s use of the 30-day screening letter, unlawful adjudication criteria, burdensome procedural requirements, and exclusions that are not job related. The lawsuit seeks back pay, attorneys’ fees, and court costs.
More information is available at www.censusdiscriminationlawsuit.com.
The case is “Evelyn Houser, et al., v. Penny Pritzker, Secretary, U.S. Department of Commerce,” No. 10-cv-3105 (FM), in the U.S. District Court, Southern District of New York.
Media Contact: Erin Powers, Powers MediaWorks LLC, for Outten & Golden LLP, 281.703.6000, @email.