A federal judge has sealed off a class action from Black workers accusing the Chicago water department of racist conduct and treatment.
The action dates to June 2017 when Black employees, some of whom worked for the city for more than 30 years, alleged a pattern of racial discrimination and harassment in the controversy-plagued Department of Water Management. Several named plaintiffs claimed the department is a “hostile and abusive work environment based on race that includes violence, intimidation, retaliation and constructive discharge.”
The procedural history includes a decision in which U.S. District Judge Joan Gottschall partially granted the city’s motion to dismiss in November 2018. After the case was transferred to U.S. District Judge Mary Rowland, she allowed the plaintiffs to amend their complaint in August 2019, at which time they voluntarily dismissed claims against individual defendants. U.S. District Judge Matthew Kennelly took over the case in May 2022.
Kennelly noted a Chicago Office of Inspector General report had found “egregious, offensive racist and sexist emails distributed by and among” several department leaders, which “suggested the existence of an unrestricted culture of overtly racist and sexist behavior and attitudes within the department.” He also said the plaintiffs alleged “physical representations of racism in the workplace,” including at least three times a noose was found in department trucks and use of racial slurs in workplace conversation.
Worker allegations also included a claim race was a factor in quality of equipment, danger of assignments, promotions, discipline and overtime opportunities, which Kennelly said was “demonstrated by anecdotal and statistical evidence.”
The plaintiffs called for a hostile work environment class, open to all Black employees dating to 2011, and three subclasses based on events occurring from June 29, 2015, through July 1, 2017: one for overtime-eligible positions, one for those accused of disciplinary infractions and a third for those with rejected applications for internal promotions.
In arguing against certification of the primary class, the city argued the workers didn’t establish a common work environment, invoking a 2021 U.S. Seventh Circuit Court of Appeals opinion, Howard v. Cook County Sheriff’s Office. Kennelly agreed, noting the Howard decision reversed certification of a hostile work environment class because the county jail includes dozens of buildings across eight city blocks making it “a leap too far to conclude from this evidence that all class members share essentially the same work environment.”
Kennelly noted the water department is “even larger than the jail complex” with five different bureaus, two large treatment plants and hundreds of construction sites. He further said the workers, unlike in the jail lawsuit, “have not provided any evidence that class members working in different bureaus occupied or experienced the same work environment.
"Instead, the evidence suggests the contrary. Several plaintiffs employed in Bureau of Water Supply testified that they did not know the alleged harassers working in Bureau of Operations and Distribution and vice versa."
The workers said the city didn’t show evidence any part of the department was free of racism. But Kennelly said the same was true in Howard, where the appeals panel noted “sexual harassment occurs throughout the jail.” However, the judge noted that wasn’t enough to establish commonality because details on the experiences of individual sites and workers would be needed.
“In this case, the plaintiffs have provided evidence that racial discrimination occurred throughout the department,” Kennelly wrote. “The evidence shows, however, that the discrimination took different forms based on each class member's situation. Some plaintiffs and putative class members described hearing racial epithets, others reported seeing racially offensive imagery in certain workspaces, and still others testified that they received harder or more dangerous work assignments. In other words, the allegations of harassment are specific and vary from plaintiff to plaintiff.”
Even the OIG report, and resulting comments from the mayor and department commissioner, are general statements that don’t establish the common experience of every worker regardless of their role in the department.
Regarding the proposed subclasses, Kennelly said the workers’ interpretation of the Illinois Civil Rights Act was less important than the fact they “have not identified any common criteria, methods or practices that caused the alleged discrimination in discipline, promotions and overtime decisions.”
Although the workers had an expert compile “statistical evidence of racial disparities,” Kennelly wrote, the issue still came down to local discretion delivering disparate impact and that being insufficient to demonstrate the common experience required for class certification.
Kennelly ordered a joint status report on a schedule for further proceedings to be submitted by June 13.
Representing the plaintiffs are attorneys from the firm of Henderson Parks, of Chicago.