US Court of Appeals Second Circuit Case 21-1575, Doc 6, Pre-Argument Statement on Appeal 07-12-2021

ong>Caseong> 2:20-cv-06291-NGG-SJB ong>Caseong> ong>21ong>-ong>1575ong>, ong>Docong>ument 6, 07/12/20ong>21ong>, 55 Filed 06/ong>21ong>/ong>21ong> 3136178, Page82 9 ong>ofong> ong>ofong> 18119 PageID #: 4398 entries, each listing a subset ong>ofong> the defendants. (See, e.g., Percy v. Oriska Corp. Gen. Contracting, 20-cv-6131 (Dkt. Nos. 28-58, 60- 62, 64-66, 68, 70-86, 88- 89, 92-93, 97-128, 135-146). None ong>ofong> the complaints explains the individual significance ong>ofong> any ong>ofong> these named defendants or discusses how or why they were identified.” (May 27, 20ong>21ong> Order, p. 12) 9. With respect to the Percy case cited by the ong>Courtong>, it is my position that the 8,773 defendants were properly identified as potential defendant class members. The defendants in question in the Percy case are businesses which employ persons in occupations which are apprenticeable. On behalf ong>ofong> my plaintiff clients, my firm used analytics services to identify individuals who had occupations that could benefit from skilled training. 1 We then sent letters advising those individuals ong>ofong> their statutory opportunities and persuading them to adopt the alternative employment practices with hyperlinks demonstrating an alternative employment practice. 10. The statute (42 U.S.C. 2000e-2[k][1][A][ii]) provides that “An unlawful employment practice based on disparate impact is established under this subchapter only if … the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.” Subparagraph (C) provides that “[t]he demonstration referred to by subparagraph (A)(ii) shall be in accordance with the law as it existed on June 4, 1989, with respect to the concept ong>ofong> ‘alternative employment practice’.” 11. I reasonably believed that, because my firm had sent the letters with demonstration described above to the Percy defendants (which made a “demonstration” within the meaning ong>ofong> 42 1 I understand that some ong>ofong> the companies were incorrectly named as defendants (including several law firms), and I apologize for these errors. Although no excuse, these administrative errors resulted from the large volume ong>ofong> information which we were making our best efforts to process, and were not intentional. 9

ong>Caseong> 2:20-cv-06291-NGG-SJB ong>Caseong> ong>21ong>-ong>1575ong>, ong>Docong>ument 6, 07/12/20ong>21ong>, 55 Filed 06/ong>21ong>/ong>21ong> 3136178, Page83 10 ong>ofong> ong>ofong> 18 119 PageID #: 4399 ong>USong>C 2000e-2), I would be able to meet the burden ong>ofong> persuasion ong>ofong> the Plaintiff Class as defined at 42 U.S.C. Section 2000d. The members ong>ofong> the class defendants in question “refuse[d] to adopt” the alternative employment practice. The 1991 amendment to the Civil Rights Act ong>ofong> 1964 (42 U.S.C. §§2000e et al, commonly referred to as PL Title VII ong>ofong> the Civil Rights Act ong>ofong> 1964 as amended in 1991) sets forth a methodology whereby the Plaintiff Class as the Complaining Party can demonstrate to Respondents an Alternative Employment Practice to address the disparate impact ong>ofong> the lack ong>ofong> skills caused by inadequate training ong>ofong> persons in the Plaintiff Class so as to have equal employment opportunity by possessing the necessary skills to compete for jobs. 12. I believed that the Class Plaintiffs, as the Complaining Party under 42 U.S.C. § 2000e–2(k)(1)(A)(ii), made the requisite demonstration to the Respondent [as described in subparagraph (C) as required by 42 U.S.C. § 2000e–2 (k)(1)(A)(ii)], and that the Respondents failed to implement training, thereby causing unfair employment practices and disparate impact. The Alternative Employment Practice and its demonstration, referenced subparagraph (A)(ii), is in accordance with the law as it existed on June 4, 1989 as required by 42 U.S.C. § 2000e– 2(k)(1)(C), being the National Apprenticeship Act ong>ofong> 1937, section 1 (29 U.S.C. 50). 13. Respondents refused to adopt the Alternative Employment Practice and therefore, under 42 U.S.C. § 2000e–2(k)(1)(A)(ii), I believed that I was entitled to bring this action to obtain relief for the Complaining Party Plaintiff Class. Accordingly, I believed that I had a meritorious federal cause ong>ofong> action ong>ofong> disparate impact on the plaintiff class as an illegal employment practice. 14. I initially filed a single case in this District under ong>Docong>ket No. ong>Caseong> No. 1:20-cv- 06131-CLP. I had attached a single PDF listing all ong>ofong> the potential class defendants but was directed by the ong>Courtong> to add each individual defendant to the docket so that they could receive notice. We encountered issues adding the various parties because ong>ofong> the ECF timeouts, etc. 10