Jottings By An Employer's Lawyer

Monday, November 29, 2010

Disparate Impact Suit - Credit Checks


Three times a year for the last several years I have done a program for the UT School of Law, CLE group called Essential Employment Law. In the morning, I talk about theory and in the afternoon my good friend (and great lawyer) Connie Cornell talks about the practical application.

One of the things I always cover are the three theories of discrimination, including disparate impact. Since disparate impact is not something that always readily comes to mind when you first think about discrimination I always try to mention an example that might cause people to relate to something that they could be doing.

This year, based on the EEOC's recent interest, I talked about credit checks. See, EEOC Public Meeting Explores the Use of Credit Histories as Employee Selection Criteria.

Given that history, it was not rocket science to predict such actions might be coming, but I did find it affirming to see the headline in today's Employment Law 360, School Sued Over Use Of Credit Checks In Hiring ($), challenging the University of Miami's Medical School's hiring practices.

According to the article:
The lead plaintiff in the case is Loudy Appolon, a black woman who lives in Miami. In the summer of 2009, she applied for and was offered a position as a senior medical collector at the university's medical school.

Just before her employment was about to commence — and after she had resigned from her previous position at North Shore Medical Center — the university reneged on its job offer due to her credit history, the complaint alleges.

It says that her credit history showed no pending delinquencies and just a few defaults from prior years that had been remedied to the satisfaction of lenders.
As noted by the term "lead plaintiff", the case was filed as a class action. Unfortunately, almost by definition disparate impact claims lead to class claims.

And if you have not looked in awhile at how savvy plaintiffs' employment lawyers are using the net in these cases, check out the website Credit Discrimination Lawsuit, by one of the plaintiffs' counsel in the suit (Outten & Golden LLP), which include a link to the complaint filed in the S.D. of Florida along with reports and case studies. It also poses the following three questions:
  • Have you been a victim of Credit Discrimination while applying for a job at the University of Miami?
  • Have you been denied a job based on your Credit History?
  • Have you been denied a job based on your Criminal History?


Note that while the first question is limited to the University of Miami, the other two cast a much broader net. If you can answer yes to any of the three, the site kindly notes that "we" would like to talk with you and provides a questionnaire where you can furnish the details.

It may not be a bad time to brush up on disparate impact law.

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