Seyfarth Shaw Labor and Employment partner Gerald Maatman co-authored a May 18 article in Law360 on the District Court of Polk County, Iowa and a three-week class action trial, Pippen v. Iowa. In the case, a class of African-American employees claimed a class-wide bias in hiring and promotion within 37 departments of the executive branch of the state of Iowa. The plaintiffs are claiming disparate impact and disparate treatment discrimination.
In the article, the authors explain that the state’s equal-opportunity merit system requires all appointments and promotions to positions be made solely on the basis of merit and fitness, to be ascertained by examinations or other appropriate screening methods. The Iowa Department of Administrative Services (DAS) is responsible for ensuring that the departments make hiring decisions in accordance with the merit system.
The authors offered Judge Blink's opinions, noting that to establish a disparate impact claim, plaintiffs had to identify a specific employment practice. Blink reasoned that merely identifying a generalized policy allowing broad discretion at lower levels “does not suffice even at the lower threshold of the class certification stage.” Moreover, the plaintiffs failed to provide legal authority for concluding that “abdication of statutory or regulatory responsibilities and obligations and/or failure to follow its own policies” is a particular employment practice. "Second, plaintiffs failed to show that the 'entire hiring process' consisted of components so indistinguishable or 'not capable of separation for analysis' that the process itself could be considered an employment practice." The plaintiffs’ counsel has already announced their intention to appeal Blink's ruling.
The authors believe the ruling by the judge deserves much analytical attention, as the theories provided in Pippen v. Iowa, provide a helpful roadmap for employers defending disparate impact claims of this type. The plaintiffs used the "implicit bias theory" presented by Dr. Anthony Greenwald. Implicit bias, according to Greenwald, is a person’s “automatic preference for one race over another” that leads the person to unintentionally discriminate. The authors believe that Blink's opinion and ruling provides a useful template to attack the use of social science theory as proof of discrimination.