Since the economic decline that started in the fall of 2008, many companies have experienced reductions in force, frozen vacant positions and engaged in other attrition efforts all with the aim of cutting costs. With signs of possible economic recovery now on the horizon for certain industries, some companies will soon execute plans to grow their businesses and rebuild their workforces. Those employers with such hiring plans need to be wary of the traps and other pitfalls that could trigger discrimination class action claims by rejected applicants.
Many class claims filed by rejected applicants allege systemic discrimination in the hiring process. Although a number of theories have been used to litigate these types of class claims, plaintiffs typically file these claims alleging violations of Title VII of the Civil Rights Act of 1964 and other related civil rights statutes under two primary theories. First, disparate treatment claims alleging intentional discrimination on a class-wide basis have generally followed the pattern and practice theory first articulated by the Supreme Court in International Brotherhood of Teamsters v. United States, 431 U.S. 329 (1977), wherein the discrimination was alleged to be so pervasive that it was the standard operating procedure of the employer. If the class plaintiffs succeed in making a prima facie showing of a pattern and practice of discrimination, then the employer must rebut that showing with evidence showing that the class plaintiffs’ statistics were either inaccurate or insignificant.