Ian Kalmanowitz and Donna Dell'Olio will be presenting a brown bag on April 9. The topic:
Their firm's recent disparate impact/disparate treatment case against the Colorado Springs PD. Arndt v. Colorado Springs involved Title VII claims for disparate impact discrimination and disparate treatment, as well as violations of the Equal Protection Clause and the ADA. The case challenged a physical abilities test (PAT) that the CSPD adopted and used as a tool for making employment decisions about incumbent officers. During the course of litigating the case, we learned that no other law enforcement agencies in the country were using a PAT to screen incumbent officers for continued employment. At our request, Judge Matsch bifurcated the trial and held a court trial on the disparate impact claim, reserving the remaining claims for a later jury trial. They prevailed at the trial to the court, and ultimately settled the case before having to try the remaining claims to the jury.
The specific topics include: (1) preparing for, pleading, and proving disparate impact; and (2) ethical considerations for settlement.
The pass rates on the PAT showed evidence of a disparate impact on older women. Plaintiffs were able to establish the existence of disparate impact through the use of a ‘chi squared’ test, as well as convincing argument that the EEOC’s 4/5ths rule is a guideline for courts to apply, not a dispositive rule for determining the existence of disparate impact.
After Judge Matsch’s order was issued the case went to mediation, and settlement was reached. The Defendants sought to include unethical and unenforceable terms in the settlement agreement, including terms that would have bound the Plaintiffs’ lawyers to confidentiality and non-disparagement provisions, as well as imposed liquidated damages on the Plaintiffs and the lawyers.