Duane Morris Discrimination Class Action Review – 2024

officer would not be working when a female detainee was required to be searched. The court noted that there were genuine issues of material fact as to whether there was a reasonable alternative that was not discriminatory. Following a two-day bench trial, the court determined that the plaintiffs failed to show that any of their five proposals for accomplishing the objectives of the policy without discriminating based on sex were reasonable. The court concluded that the proposed policies would not allow the city and the police department to move forward with the same amount of security, because the proposals would create gaps in policing the community and put the public and other officers at risk. The court therefor held that the judgement in favor of defendant should be affirmed. The defendants were yet again successful dismissing litigation early in Wilson, et al. v. Timec, 2023 U.S. Dist. LEXIS 157535 (E.D. Cal. Sept. 6, 2023), where the plaintiffs brought class-wide discrimination allegations under Title VII and the California Fair Employment Housing Act. The plaintiffs asserted that the defendant ’ s drug testing procedures were deficient because they commonly produced false positive results for black employees who the plaintiffs asserted were more likely to have melanin-rich hair. In considering the defendants’ motion for judgment on the pleadings as a motion to dismiss, the court identified several flaws contained within the complaint, including the plaintiffs’ failure to offer any allegations concerning the difference in melanin content among different races; how the drugs interacted with an individual ’ s hair; or even the risk of positive tests of melanin-rich hair. As a result, the court opined that the plaintiffs failed to allege any connection between race and the challenged employment practice, thereby warranting dismissal of their disparate impact claims. Moreover, the court reasoned that despite the fact that the plaintiffs allegedly informed defendants of the defective drug testing, this fact alone, did not establish discriminatory intent sufficient to prove intentional discrimination. The plaintiffs’ disparate treatment claims, therefore, failed as well. In discrimination class actions, disparate treatment and disparate impact theories are frequently pled together, commonly as alternative routes for liability. In order to plausibly plead under either theory, plaintiffs must offer enough facts to overcome the burdens established by the U.S. Supreme Court in the seminal rulings of Bell Atlantic Co. v. Twombly , 550 U.S. 544 (2007), and Ashcraft v. Iqbal , 556 U.S. 662 (2009). In Strifling, et al. v. Twitter Inc., 2023 U.S. Dist. LEXIS 154014 (N.D. Cal. May 8, 2023), plaintiffs did not meet this burden. Following mass layoffs brought on by Elon Musk ’ s purchase of Twitter Inc., a group of former female employees brought class claims alleging that the layoffs themselves, as well as subsequent resignations prompted by Musk ’ s “work longer, work harder” ultimatum, forced a disproportionate number of women to leave Twitter. Id. at *5. Even after acknowledging that the plaintiffs did not satisfactorily exhaust their administrative remedies, the court still found enough deficiencies in the complaint to warrant dismissing the disparate treatment and disparate impact claims. The court criticized the complaint for failing to allege basic facts, like what positions the plaintiffs held, their performance, or whether similarly-situated men were laid off, and therefore failed to establish a causal link to the protected class. Id. at *10. Additionally, the court reasoned that the complaint inexplicably did not allege that Twitter engaged in a pattern or practice of discrimination. While plaintiffs seemingly relied entirely on the layoffs and post-layoff resignations to support their claims, these two discrete acts were far from the routine and regular practice that courts typically expect. Id. at *11. Finally, despite Musk ’ s public comments toward women, the court pointed out that those cited in the complaint were made prior to his acquisition of the company. Id. at *15-16. The court concluded, therefore, that these stray remarks could not satisfy causation either. The plaintiffs’ disparate impact claims were similarly shot down, and again, causation was the pitfall: despite pinpointing Twitter ’ s delegation of layoff decisions to a small group of managers (and as to the discriminatory practice at issue, the complaint did not allege how this discretion caused the alleged gender disparity). Accordingly, the court also found that the plaintiffs failed to state a disparate impact claim. For these reasons, the court granted the defendant ’ s motion to dismiss. In a nearly identical lawsuit, former employees in Zeman, et al. v. Twitter, Inc., 2023 U.S. Dist. LEXIS 152666 (N.D. Cal. Aug. 29, 2023), also challenged Twitter ’ s mass layoff procedures, but this time arguing it constituted age discrimination in violation of both the Age Discrimination in Employment Act (ADEA) and New York State Human Rights Law (NYSHRL). Id. at *3. The defendant moved to dismiss the plaintiff ’ s

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