Standing Up for the Full Promise of Equal Employment Opportunity

Impact Fund files Amicus Brief in Guerrero v. California Department of Corrections and Rehabilitation, Case No. 15-17001

Lindsay Nako, Impact Fund Director of Litigation & Training

Lindsay Nako, Impact Fund Director of Litigation & Training

Victor Guerrero applied twice for employment as a Corrections Officer with the California Department of Corrections and Rehabilitation (“CDCR”). Both of his applications were subject to a multi-step review process, one step of which was a background investigation questionnaire.  Since 2009, the background investigation questionnaire has included the following question: “Have you ever had or used a social security number other than the one you used on this questionnaire?” This question, known as Question 75, exclusively eliminated Latino applicants—including Mr. Guerrero—from the review process. Mr. Guerrero filed suit, alleging Question 75 has a disparate impact on Latino applicants.

After a six-day bench trial before Judge William Alsup in the Northern District of California, the district court concluded that available statistics demonstrated that Question 75 had a statistically significant disparate impact on Latinos. While Latinos made up 42.1% of recent hires into Corrections Officer positions, they made up 78.6% (33 out of 42) of applicants who answered “Yes” to Question 75; 76% (19 out of 25) of the applicants withheld after answering “Yes” to Question 75; and, finally, 100% (9 out of 9) of the applicants eliminated from consideration in whole or in part for answering “Yes” to Question 75. Guerrero v. Cal. Dep’t of Corr. & Rehab., 119 F. Supp. 3d 1065, 1072 (N.D. Cal. 2015).

CDCR appealed the decision to the Ninth Circuit and its appeal raises, among other issues, the question of the appropriate statistical analysis in disparate impact cases under Title VII of the Civil Rights Act of 1964. The department argued that the only appropriate statistical analysis was to look at the percentage of all Latino applicants excluded by Question 75 – that is, nine out of the total 10,357 Latinos who applied for Corrections Officer positions.

Yesterday, the Impact Fund filed an amicus brief in support of Mr. Guerrero to advocate against the adoption of any specific formula for analyzing statistics in disparate impact cases. Our argument is that CDCR’s position fails to fulfill Title VII’s promise of equal employment opportunity and departs from governing case law. In particular, CDCR ignores precedent guiding the analysis of statistical evidence in multi-step selection processes, namely Connecticut v. Teal, 457 U.S. 440 (1982). Our brief states, “Creating unnecessary statistical hurdles to demonstrate disparate impact would frustrate Title VII’s purpose and create a locked door, to be opened only by those possessing the exact key and excluding all others from Title VII’s promise of equal employment opportunity.”

Impact Fund is joined by fellow Amici; Asian Americans Advancing Justice - Asian Law Caucus, American Civil Liberties Union of Northern California, California Rural Legal Assistance Foundation, Disability Rights Education & Defense Fund, East Bay Community Law Center, Equal Rights Advocates, Legal Aid Association of California, Public Interest Law Project, Public Advocates Inc., and Western Center on Law and Poverty.

Mr. Guerrero is represented by Christopher Ho and Stacy Villalobos of the Legal Aid Society – Employment Law Center. CDCR’s reply brief is due June 6, 2016. Oral argument has not yet been scheduled, but we shall be following this one closely!