42 | EEOC-INITIATED LITIGATION: 2023 EDITION ©2023 Seyfarth Shaw LLP CRT used was developed by the founder and programmed into the server, “no one at CRT today knows what it is.” 120 Accordingly, the employer’s proof of job-relatedness was based on hearsay that would be inadmissible at trial.121 Since the ruling in EEOC v. Stan Koch & Sons Trucking, Inc., at least federal court has issued a decision in a case alleging sex discrimination based on disparate impact resulting from hiring examinations. In Simpson v. Dart,122 the U.S. District Court for the Northern District of Illinois granted the plaintiffs’ motion for class certification for a class of applicants who sought employment with the Cook County Department of Corrections. The plaintiffs argued that certain hiring examinations disparately impacted African-Americans, and were therefore discriminatory under Title VII of the Civil Rights Act. Specifically, the plaintiffs claimed that the hiring practices of Correctional Officers at the Cook County Department of Corrections were racially discriminatory against African-Americans. The hiring process at issue consists of various steps conducted by the Merit Board and Sheriff’s Office, including: (1) screening for minimum qualifications; (2) an initial written examination; (3) a second written examination; (4) a physical abilities test; (5) finger printing and drug testing; (6) a personal history questionnaire and follow-up interview; and (7) final review by the Merit Board members. Applicants must successfully complete this process and obtain certification before they are eligible for hire. At issue in the Plaintiffs’ motion for class certification were the Merit Board’s hiring examinations, such as the initial written examination, the second written examination, and the physical abilities test. The plaintiffs claimed that the hiring examinations disparately impact African-Americans in violation of Title VII. The Court considered the Defendant’s challenge to the Plaintiffs’ attempted extension of their Title VII class period relative to three of the four sub-classes at issue, by using a start date of July 2014. Such a start date fell far earlier than 300 days from the filing of the underlying charge of discrimination (i.e., the applicable statute of limitations period). In support of such a class period, the Plaintiffs relied on Lewis v. City of Chicago, Ill., 560 U.S. 205, 210-11 (2010), claiming that the unlawful hiring practice at issue involves the written and physical examinations, which took place in July 2014. The Court disagreed. It found that Lewis stands for the proposition that later implementation of a policy that causes a disparate impact can qualify as a new, actionable employment practice. Critically, the U.S. Supreme Court did not hold that a plaintiff can “reach back” to a testing date that falls outside of the 300-day statute of limitations window. Accordingly, the Court limited the class period to 300 days from the date the charge was filed—March 2015. The Court then analyzed whether Plaintiffs met the requirements of Rule 23 for certifying the classes at issue. First, the Court held that the Plaintiffs established the commonality requirement because the hiring examinations constitute an employment policy that causes racial discrimination not justified by any business necessity. Critical to the Court’s holding in this respect was that Plaintiffs pointed to employment actions that did not involve the exercise of discretion. Second, the Court dismissed the Defendants’ argument that the claims of the named plaintiffs were not typical of the putative class. The Court opined there was “no question the named plaintiffs’ claims arise from the standardized tests and are based on the same legal theory, disparate impact,” and Defendants’ contention that such a requirement could not be satisfied because they “prepared for the standardized tests in different ways” was unavailing. Such “minor variances” made “no difference to the Court’s certification analysis.” 120 Id. 121 The Court concluded that “even if the testimony of the CRT corporate designee about his conversations with [founder] concerning the development of the BIS formula and the relationship of BIS scores to generalized job exertional categories were somehow admissible, [employer] cannot justify its use of cutoff scores that cause a disparate impact on women by reference to unspecified data sets or literature, or computations processed through an unknown algorithm.” Id. at *8. With respect to business necessity, the court found that “there is no evidence from which a reasonable factfinder could conclude that the use of the CRT test was “essential” to resolving Koch’s “demonstrable” problem with workplace injury and workers compensation claims – or that any such problem existed in the first place.” Id. at *9. 122 Simpson v. Dart, No. 18-CV-0553, 2022 WL 3154205 (N.D. Ill. Aug. 8, 2022).