No disparate impact liability against third-party criminal screening company servicing apartment building

This Fair Housing Act case alleges that a third-party vendor that screens the criminal records of applicants who want to live in residential apartments is liable for disparate impact against Hispanic residents. The trial court, following a lengthy trial, ruled against the plaintiff. The Court of Appeals agrees and says the vendor did not cause the denial of the housing application simply by providing that report highlighting the applicant's criminal record.

The case is Connecticut Fair Housing Center, Inc., v. CoreLogic Rental Property, issued in February 20. CoreLogic is the screener, using the CrimSAFE screening platform. Plaintiff's application to move from a one-bedroom to a two-bedroom apartment was rejected after screening found that her son, who lived with her, had a pending shoplifting charge that was ultimately dropped. 

The argument is that screening procedures like this have a disparate impact on Hispanics, who are arrested at a higher rate than white applicants. That disparate impact would violate the Fair Housing Act, which holds defendants liable if they do not intend to subjectively discriminate against racial minorities if the process by which applications are denied bears no reasonable relationship to the application itself, i.e., the desire to live in the apartment. 

The question here relates to causation: did CoreLogic's screening process proximately cause the housing application denial? We are not talking factual causation but legal causation sufficient to hold this entity liable under the FHA. That's a legal inquiry that scholars and judges have been grappling with for decades. The district court's finding -- that CoreLogic cannot be held legally responsible for the application denial   -- is affirmed on appeal. 

The Second Circuit (Wesley, Menashi and Cabranes) finds that, apart from the screening process, "it was the housing provider that controlled every other aspect of the application process" and made the final decision after reviewing the background report and deciding what to do with the report's findings. In other words, CoreLogic's screening procedures were too attenuated from the housing provider's decision to deny the application. The legal system will not hold such a third-party vendor liable even if the layperson might partially blame the application denial on CoreLogic's investigation that, in the end, penalizes one race for conduct based on disparate impact. 

What the Supreme Court did in the tariffs case

The Supreme Court has struck down the far-reaching tariffs imposed by the Trump administration, finding that the statute invoked by Trump does not authorize them, and that ruling otherwise would allow the Executive Branch (the Presidency) to take on the functions that the Constitution solely affords to the Legislative Branch (Congress).

The case is Learning Resources v. Trump, issued on February 20. After taking office, Trump imposed tariffs against countries all over the world. He did so under the authority of the International Emergency Economic Powers Act, enacted in 1977 to allow the President to address significant international threats by declaring a national emergency. In this case, Trump said the national emergency was international drug trafficking and the economic crisis. Under Trump's order, the tariffs would essentially tax imports and therefore favor American businesses, though economists believe the tariffs would raise prices on the consumer, who would essentially absorb the extra financial penalties in the marketplace.

By a six-three vote, the Supreme Court finds that the Act does not authorize the tariffs. The Act does give the President authority to regulate the exportations of any property in which any foreign country has any interest. Does this language include the power to unilaterally impose tariffs? No, says the Court, which reviews the definition of "regulate" and explains that, under a constitutional doctrine that the Court has previously articulated, the "major questions doctrine," we cannot interpret ambiguous statutes to grant the President authority to take on extraordinary powers normally delegated to Congress under the Constitution. This principle respects the separation of powers enshrined in the Constitution. 

In this case, we know that the Constitution gives Congress power to impose a tax, which is essentially how we define a tariff, as it raises revenue by governmental directive. The Court is unwilling to assume that Congress, in passing the emergency powers act, intended to delegate taxing authority to the President without the ability for Congress to pass judgment on such a measure simply because the President declares an emergency.

Adding to the Court's analysis is that no President has previously tried to impose any tariffs without congressional authorization, much less tariffs of this size and scope, which reach around the world and would amount to trillions of dollars. In the end, without clear congressional authority to impose these tariffs unilaterally and with congressional authorization, the Court will not allow the President to impose these tariffs under the emergency act. 

If you are keeping score, Chief Justice Roberts wrote the majority opinion, joined by Justices Barrett, Gorsuch, Sotomayor, Kagan and Jackson. Roberts is a Republican who rules with the liberals on an infrequent basis, and Trump appointed Barrett and Gorsuch. The other three Justices in the majority were appointed by Democratic presidents. So this is a bi-partisan ruling. Justices Thomas, Alito and Kavanaugh dissented. 

Title VII retaliation fails on summary judgment

This case arises from the plaintiff's prior settlement agreement with the City University of New York, which stated that she would remain in her faculty position for two years, during which time she would work toward her reappointment or tenure, i.e., completing her doctorate. The settlement grew out of a prior grievance. Plaintiff then sued CUNY, claiming that it gave her a class schedule that interfered with her reappointment or tenure, and that CUNY did so in retaliation for her prior protected activity: complaining about discrimination. The plaintiff loses on summary judgment.

The case is Brown v. CUNY, a summary order issued on February 18. Plaintiff claimed that, as a result of CUNY's alleged interference with her efforts to obtain a doctrine, she was denied tenure and terminated. The Court of Appeals holds that no jury can find that CUNY knowingly offered a false reason for her termination, that is, there is no pretext. 

Plaintiff loses, the Court of Appeals (Bianco, Perez and Kahn) holds, because she does not dispute that the settlement agreement governed her tenure application process, and that she did not complete her doctoral program, as the agreement had required. But she cannot prove that the scheduling conflicts which she claimed interfered with her doctoral programs were intentionally created by CUNY. Rather, the Court says, the evidence shows that CUNY tried on multiple occasions to accommodate her scheduling conflicts; CUNY would fix the problem when plaintiff brought it to their attention.

The Court also finds a "mismatch" between who designed plaintiff's schedule and who knew about her prior protected activity. While plaintiff complained to the Dean and HR, the one who worked on the schedule was not aware of her discrimination complaint. "The lack of knowledge on the part of particular individual agents is admissible as some evidence of a lack of a causal connection." That language derives from Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111 (2d Cir. 2000). While the Gordon case is famous for the "general corporate knowledge" rule -- that everyone in management is presumed to know about the plaintiff's protected activity, that does not get plaintiff off the hook if an individual actor was not aware of the protected activity and that lack of knowledge therefore cuts off the causal link between the protected activity and the adverse action, such as termination.

FIrst Department reinstates racial discrimination claim

The Appellate Division has reinstated a claim that a Black plaintiff was denied a promotion and fired because of his race. The First Department recognizes that the complaint asserts a cause of action. We see once again how the New York State and City Human Rights Laws operate.

The case is Altidor v. Medical Knowledge Group, LLC, issued on February 17. This is a classic disparate treatment case. Plaintiff asserts that that he was fired after making one mistake. Two of his white coworkers made similar mistakes. But they were neither reprimanded nor terminated. Hence the disparate treatment claim. 

As the First Department puts it, "Plaintiff specifically alleged that one of the white coworkers was an IT Help Desk Technician, the same position he held, and that the coworker performed substantially similar work under similar working conditions. He further alleged that he helped fix some of the mistakes that this coworker had made in the past." Is this enough to assert a disparate treatment claim? Yes, says the First Department. We don't have much analysis here, but the facts, as stated in the ruling, make out a claim, opening up the case for discovery.

Plaintiff also asserts a claim for failure to promote. Plaintiff says that someone else got the position: a coworker got the position that plaintiff had already been performing. Nor was the position posted before it was filled. Under the generous standards guiding discrimination claims in the state and city, the First Department writes, "These allegations are sufficient to meet plaintiff’s pleading burden as this Court has previously held that it is unnecessary for a plaintiff to allege that he applied for a promotion where he has alleged that promotions were typically made unannounced and unsolicited or where defendant failed to advertise the position."

Court rejects proposed settlement between EEOC and labor union as not in the "public interest"

In our world, if the case settles, then the case is over. Most civil rights cases settle privately and the court will issue an order dismissing the case without analyzing whether the settlement is fair or not. But there are exceptions to this rule. One of them arises in this case, where the EEOC has been in litigation against a labor union for more than 50 years and decided to resolve the case once and for all. The trial court had different ideas, and the settlement is rejected.

The case is EEOC v. Local 580 of the International Association of Bridge, Structural and Ornamental Ironworkers, a summary order issued on February 12. The Department of Justice sued the union in 1971. That was the Nixon Department of Justice, by the way, which accused the union of racial discrimination in denying employment opportunities to non-white job applicants by excluding them from union membership and refusing to send them out to available jobs. 

A consent decree was eventually put in place but the union violated its terms again and again over the years. But in 2019, after several years of not hearing any complaints of discrimination from Local 580 members, the EEOC decided that continued supervision over the union was no longer warranted. The agency's research showed that only 17% of those union members interviewed said they were victims of racial discrimination. The EEOC also hired an expert who found significant racial disparities with respect to overtime hours, but the expert said these disparities were the fault of employers, not the union. This analysis only focused on 2018-2019, however, as the union had only collected data from 2018 to the present. Based on this evidence, the EEOC moved to end the court/EEOC supervision over the union.

The trial court denied the motion, and the Court of Appeals (Calabresi, Lee and Nathan) agrees that it is still too early to withdraw this supervision over the union. Why? Because it is not "fair and reasonable" under the case law. The court finds the union had consistently ignored court orders to maintain good record keeping regarding critical data about the operation of its referral hall. So we do not have reliable data about how things really work at the union. It is therefore not clear if the proposed consent decree would improve racial disparities among union workers, the entire purpose of the litigation. 

Nor is it in the public interest to withdraw this court/EEOC supervision, the Second Circuit holds, not only because of the faulty record-keeping, and adopting the consent decree might signal to future litigants that disregard for court-ordered obligations will be rewarded. 

Children have standing to challence the State's child placement laws

This case examines the procedures in New York when a child is removed from their biological parents and the child's relatives want to provide care. Not everyone is allowed to adopt: those convicted of certain crimes are unable to do so, and if the evidence suggest the relatives had abused other children, their application will also be denied. This case is brought by the children, claiming these procedures violate the constitutional right to family integrity.

The case is B.B. v. Hochul, issued on February 2. This case does not actually review the legality of these child adoption procedures. We have a more esoteric issue to deal with: do the children have standing to bring this lawsuit? 

Standing can get in the way of a good lawsuit. You need to show you are in a position to benefit from a favorable court ruling. The district court said there is no standing because the children currently live with their relatives  and, for those who do not, they cannot show any injury because they were not under the state's care. Other children did not have standing, the trial court said, because they only alleged inadequate treatment, not suboptimal care.

The Court of Appeals (Park, Menashi and Kahn) reverses, finding the plaintiffs suffered a "concrete injury" under Article III of the Constitution. Without that finding, you cannot sue anyone simply to obtain a favorable court ruling. Here, the children have standing because "placements with non-relatives make children less likely to find permanent placements and increase the risk of psychological and other harms." Such harms are cognizable under the Constitution

The children also have standing because the Constitution itself protects familial relationships from unwarranted governmental interference. The Constitution does not actually say that, but the Supreme Court has ruled that such rights are implied under the Constitution. What is more, the Constitution ensures that people under the state's custody, be it prisoners or children in these circumstances, can legally expect the government to keep them free from harm.

This looks to be an important standing ruling from the Second Circuit, which goes on to find that the children may bring this lawsuit because they can trace their injuries to the allegedly unconstitutional child placement policy and its mandatory disqualification rules. As for whether these rules are legal, the case returns to the district court, as the Court of Appeals is "a court of review, not of first view."  

Defendant's medications were no barrier to plea bargain

In this criminal case, the defendant pled guilty. In order to do that, the trial court has to make sure the defendant is pleading guilty voluntarily and that he knows what he is doing. One way to accomplish that is to ask if the defendant is taking any medications. That line of inquiry brings this case to the Court of Appeals.

The case is United States v. Boria, issued on February 4. Defendant was charged with conspiring to distribute cocaine and possessing a firearm. He then decided to plead guilty. The judge asked if he was taking medication. Defendant said he was taking medication "for sleeping problems and bipolar." The judge then asked a series of questions relating to defendant's capacity to understand what was happening, i.e., "are you clearheaded" and "do you understand what's happening here in court?" Defendant answered Yes to these questions. 

Defendant seeks to vacate the sentence (a mandatory term of 15 years) on the basis that the trial judge did not adequately ask about his medication, their side effects, and their impact on him. Defendant loses the appeal under the "plain error" standard of review, one of the most difficult appellate standards, but which applies here since defendant did not raise this objection in the district court. But you get the sense that even under a less burdensome standard of review, defendant would lose the appeal.

The Court of Appeals (Park, Lohier and Kearse) finds that while the district court must ask about the side effects of medications, it did so here when it asked if defendant felt clearheaded and understood what was happening in court that day. The Court of Appeals sees no "red flags" in the record on this point that might have caused the trial judge to pause before proceeding with the plea proceeding.