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Monday, September 16, 2019

Lawsuit alleging Ford discriminated against Latino job applicants at south suburban plant OK to continue: Appeals panel

Lawsuits

By D.M. Herra | Sep 5, 2019


A group of Latino job applicants alleging a local Ford plant discriminated against them based on their race may proceed with at least part of their discrimination lawsuit, a panel of appellate judges decided.

The seven plaintiffs in the lawsuit all identify as Hispanic or Latino, and all applied for jobs at Ford’s assembly plant near Harvey. According to the lawsuit, the chairman of the factory’s United Auto Workers union, who is black, conspired with the local unemployment office to prevent Hispanic or Latino applicants from being hired. The suit said the union chair believed he would have greater support from black workers. Though Latinos make up about 20 percent of the local work force, the suit said, they make up almost none of the employment roll at the plant.

Applicants apply for jobs at Ford through the local unemployment office, the suit said. The applications are sent to Ford, which forwards them to a third-party company that administers pre-employment tests. Applicants who pass the tests, drug screens and background checks are then turned back over to Ford for the interview process.

The seven plaintiffs filed charges with the Equal Employment Opportunity Commission and received “right to sue” letters from that body. Their initial lawsuit had two counts, each alleging a different theory of how the discrimination was carried out. In Count I, the applicants alleged that the unemployment office conspired with Ford to lose or destroy applications from Latino or Hispanic job seekers before they ever reached the testing stage. Count II alleged an alternative theory: that the applicants were allowed to take the pre-employment tests, but the testing process discriminated against Hispanics and Latinos.

Though the lawsuit attributed discriminatory actions to both the union chair and the unemployment office, Ford was the only named defendant.

The district court dismissed the lawsuit in its entirety on the grounds that it contradicted the allegations in the EEOC charges. The EEOC charges followed the second theory, that the pre-employment tests discriminated against Hispanic applicants. The court found that was contradicted by the lawsuit’s allegations that the applicants never made it to the testing stage.

“In Count I of the complaint, the plaintiffs claim a scheme of discrimination that focuses on the pre-test application process, including new claims that Hispanic and Latino applicants’ contact information is destroyed or interfered with,” Judge Daniel A. Manion of the U.S. Seventh Circuit Court of Appeals wrote in the appellate opinion. “This was not the misconduct of which the EEOC charges placed Ford on notice.”

The appellate judges said the district court was right to dismiss that count, as the new charges did not fit with the charges in the EEOC complaint. The second count, however, did describe the same conduct that was reported to the EEOC.

The appellate judges disagreed with Ford’s claim that the plaintiffs failed to state a claim for relief. Their argument of disparate impact may be challenged or disproved by Ford, and they may have to provide further evidence and data, the court ruled, but the claim is strong enough to survive a motion to dismiss.

The court affirmed the district court’s dismissal of Count I of the complaint but vacated the dismissal of Count II and remanded it for further action. Judges William J. Bauer and Michael B. Brennan concurred in the opinion.

The plaintiffs are represented in the action by attorneys James L. Bizzieri, of the Bizzieri Law Offices LLC, of Chicago, and Julie K. Bisbee, of Chicago.

Ford is represented by attorneys with the firms of Berkowitz Oliver LLP, of Kansas City, Mo.; Gibson, Dunn & Crutcher LLP, of Washington, D.C., and Los Angeles; Donohue, Brown, Mathewson & Smyth LLC, of Chicago; and Freeborn & Peters LLP, of Chicago. 

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