PRACTITIONER BLOG

Read our analyses of developments in Impact Litigation and stay current on class action law

RESPONDING TO THE RESTRICTION OF EMPLOYMENT DISCRIMINATION CLASS ACTIONS
Class Actions, Employment Discrimination Teddy Basham-Witherington Class Actions, Employment Discrimination Teddy Basham-Witherington

RESPONDING TO THE RESTRICTION OF EMPLOYMENT DISCRIMINATION CLASS ACTIONS

The arc of employment discrimination class action law is bending away from justice. As a result, plaintiffs’ lawyers frequently have to self-censor, generally in the opening complaint or the class certification motion, or as we did in Simpson at the 23(f) stage. Maximizing the chances for certification may require defining the class or multiple small classes so as to eliminate potential class members, claims, or forms of relief. Unfortunately, this type of self-censorship deprives employees of the possibility of obtaining the types of broad reforms that we were once able to achieve and hopefully can again pursue in the future as the law evolves.

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Impact Fund Applauds California Supreme Court Decision to Adjust the Bar Exam Passing Score
California Bar Exam, Attorney Diversity Teddy Basham-Witherington California Bar Exam, Attorney Diversity Teddy Basham-Witherington

Impact Fund Applauds California Supreme Court Decision to Adjust the Bar Exam Passing Score

By adjusting the cut score, California is making a bold step toward ensuring that its community of lawyers reflects the diversity of the state. By the State Bar’s own estimates, setting the cut score at 1390 would allow 20% more test-takers overall to pass—including approximately 40% more Black, 26% Latino, 26% Asian and 27% other minority attorneys joining the bar’s ranks each testing session.

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Distinguishing Dukes: Another Victory For Employment Discrimination Class Actions
Class Actions, Employment Discrimination Teddy Basham-Witherington Class Actions, Employment Discrimination Teddy Basham-Witherington

Distinguishing Dukes: Another Victory For Employment Discrimination Class Actions

Employers have consistently taken the position that challenges to employment processes that involve some element of subjectivity – and most do – cannot be brought on a class basis after Dukes.  According to the logic of this argument, only non-discretionary evaluation measures, such as standardized tests or physical fitness tests, will satisfy commonality under Rule 23(a). Fortunately, a recent opinion from the Southern District of New York joins the growing list of decisions rejecting this extreme position. 

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SCOTUS Amicus Brief: Class Actions Vital To Equal Opportunity In Employment
Class Actions, Civil Rights, Employment Discrimination Teddy Basham-Witherington Class Actions, Civil Rights, Employment Discrimination Teddy Basham-Witherington

SCOTUS Amicus Brief: Class Actions Vital To Equal Opportunity In Employment

A fair workplace, free from discrimination, is an American ideal. Many of our nations F500 companies reflect this value in their forward-facing materials and practices, but sadly, at the contractual level with workers, the promise of an even playing field gets tilted…

That’s why, on August 17, 2017, together with NAACP Legal Defense & Educational Fund and Cohen Milstein Sellers & Toll PLLC, we filed an amicus brief in the U.S. Supreme Court in National Labor Relations Board v. Murphy Oil USA.

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Racial Discrimination, Amicus Brief, Equal Employment Opps Teddy Basham-Witherington Racial Discrimination, Amicus Brief, Equal Employment Opps Teddy Basham-Witherington

Standing Up for the Full Promise of Equal Employment Opportunity

Victor Guerrero applied twice for employment as a Corrections Officer with the California Department of Corrections and Rehabilitation (“CDCR”). Both of his applications were subject to a multi-step review process, one step of which was a background investigation questionnaire.  Since 2009, the background investigation questionnaire has included the following question: “Have you ever had or used a social security number other than the one you used on this questionnaire?” This question, known as Question 75, exclusively eliminated Latino applicants—including Mr. Guerrero—from the review process. Mr. Guerrero filed suit, alleging Question 75 has a disparate impact on Latino applicants.

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