18th Annual Workplace Class Action Report - 2022 Edition

64 Annual Workplace Class Action Litigation Report: 2022 Edition not treat the rule as generally decisive. Id . at *9-10. Finally, considering the issues of Defendant’s burden to demonstrate that the CRT test was related to safe and efficient job performance and consistent with business necessity, and the EEOC’s demonstration of an alternative selection method that had substantial validity and a less disparate impact, the Court held there were material facts in dispute that precluded summary judgment for either party. Accordingly, the Court denied both parties’ motions for summary judgment. EEOC v. Stan Koch & Sons Trucking, 2021 U.S. Dist. LEXIS 168297 (D. Minn. Aug. 30, 2021). The EEOC brought an enforcement action alleging that Defendant’s use of a physical abilities test for truck drivers had a discriminatory impact on female drivers in violation of Title VII of the Civil Rights Act. After discovery, the EEOC filed a motion for summary judgment, which the Court granted. The main physical requirements of the job for a driver operating a van were to get into and out of the cab of the truck, climb on and off the back of the truck, inspect the truck, which included stooping and crouching, and crank up and down the dolly legs that stabilized the trailer when it was not connected to the cab. Id . at *5. In April 2009, Defendant began requiring applicants to pass a physical abilities test, the "CRT test,” which measured a person’s range of motion and torque in their shoulders, knees, and trunk. Defendant required applicants to obtain a certain score on the test, and if they did not pass, they would either need to take the test again and pass it, or they would not be hired. Defendant contended that the test was implemented in order to reduce the amount of workplace injuries to drivers by ensuring that hired drivers had the requisite fitness required for the position. The EEOC sought relief on behalf of all women drivers who failed the CRT test between February 2013 and January 2018. To show disparate impact, the EEOC relied on the analysis of three experts. The first was from a labor economist Dr. Erin George, who submitted a report finding that 93.9% of CRT tests taken by male applicants resulted in a passing score, whereas 52% of CRT tests taken by female applicants resulted in a passing score. Dr. George opined that Defendant’s use of the test was not neutral with respect to sex. Dr. Ronald Landis. a statistical analysist, evaluated the validity of the CRT test and found "no empirical evidence that supports the validity of this test in predicting relevant on-the-job injuries or the costs of those injuries." Id . at *9. The third expert, Dr. Charles Scherbaum, discussed employee selection, personnel management, and test validation, and opined that there was "no evidence of the validity of the CRT test that conforms to any accepted method for establishing job- relatedness." Id . at *10. Defendant did not offer any expert opinion evidence in its response to the EEOC’s motion. The Court held that the evidence demonstrated that the disparities between male and female applicants for driver jobs were directly attributable to Defendant’s use of the CRT test, and the disparities were so great that they could not have occurred by chance (nor did Defendant submit any other plausible explanation to explain the disparities). The Court thus held that the EEOC established a prima facie case of disparate impact. Further, the Court looked to whether Defendant established that the test was related to the needs of the job or whether it was a business necessity. The Court determined that there was nothing connecting the dots between the jobs as performed at Defendant, the movements assessed by the CRT test, the score each test generated, and the cut-off scores selected. Accordingly, the Court ruled that Defendant failed to meet its burden to show the CRT test was job-related. Likewise, the Court reasoned that nothing in the record showed that the CRT test was "essential to eliminating" workplace injuries or claims. The Court therefore granted the EEOC’s motion for summary judgment. (ix) Ninth Circuit EEOC v. Activision Blizzard, Case No. 21-CV-7682 (C.D. Cal. Dec. 20, 2021). The EEOC filed an action on behalf of female employees alleging that they faced gender-based harassment and retaliation in violation of Title VII of the Civil Rights Act. The parties ultimately reached a settlement and filed a proposed consent decree that established a voluntary claims process. The California Department of Fair Employment and Housing (“DFEH”) moved to intervene in the action for purposes of “protecting the interests of California and its workers.” Id . at 1. The Court denied the motion. The DFEH claimed that it had a general interest in upholding the rights of California citizens and an interest in protecting the DFEH’s ability to prosecute its own parallel state court case against Defendant. As a result, the DFEH sought to challenge the voluntary claims process because it asserted that the consent decree would release California state law claims, and would allow Defendants to destroy evidence relevant to the DFEH’s state court case. Id . at 1-2. The Court found that the interest at issue actually belonged to those undergoing the claims process, not to the DFEH, and if it were to accept the DFEH’s argument, it would essentially be able to intervene in any employment action in the state. The Court opined that the DFEH’s interpretation was over-broad. The Court also reasoned that it would unlikely that the Court would