U.S. Court of Appeals for the Seventh Circuit

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February 24, 2012

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U.S. Chamber addresses certifiability of Title VII disparate impact class actions

December 29, 2011

NCLC urged the U.S. Court of Appeals for the Seventh Circuit to affirm the district court’s denying class certification of a putative class alleging Title VII violations. In this case, a putative class of African-American financial advisors alleged that two corporate policies resulted in unlawful disparities in their pay. The plaintiffs are now challenging the district court's third decision to deny class certification in this case.

In its amicus brief, NCLC explained that the U.S. Supreme Court’s decision in Wal-Mart v. Dukes rejected certification of disparate-impact claims—such as this one—that provide no common basis for determining why each class member had allegedly been disfavored. Wal-Mart rejected aggregation of precisely the same sorts of diffuse, inherently individualized Title VII claims that these plaintiffs have alleged. In fact, like the Wal-Mart plaintiffs, these plaintiffs here rely on testimony from Dr. William Bielby, who has candidly admitted to the same flaw that unraveled his “social framework analysis in Wal-Mart—namely, that he could not say whether any employment decision was the result of unlawful discrimination. NCLC's amicus brief argued that there are serious constitutional concerns with the plaintiffs’ proposed class action. Moreover, certifying this class action would encourage even more frivolous class action litigation which will force even more employers to settle even dubious claims rather than “bet the company.”

NCLC’s motion for leave to file was denied by the court on 1/3/2012.

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