Johnson v. Locke

At a Glance

Current Status 

On July 1, 2014, the District Court certified a plaintiff class for purposes of seeking injunctive relief. On October 2, 2014, the Court amended the class definition to also include Latino Census job applicants.  Discovery in the case is now stayed while the parties participate in mediation. 

Date Filed: 

April 13, 2010

Co-Counsel 

Outten & Golden

Case Description 

In 2010, the U.S. Bureau of the Census hired over a million temporary employees to conduct census surveys and serve in clerical positions. The Bureau ran the names of all applicants through the FBI Criminal Justice Information Services Division’s Name Index, which contains a “criminal history record” for anyone who has ever been arrested. If an applicant’s name appeared, Census informed the applicant and gave them the opportunity to “to provide official court documentation on any arrest(s) that affect hiring eligibility” with a 30-day deadline.

However, half of the FBI’s records have no information on final outcome of the arrest, i.e. whether the case actually led to a prosecution or conviction. Even those with expunged records may still have their names in the FBI’s database.  Putting the onus on the applicant to produce these records, especially those that may be expunged or destroyed, was a time-consuming, arduous task, especially within the short timeframe (which also violated federal policy). While an arrest did not necessarily preclude an otherwise eligible applicant from being hired, it appeared that, in practice, the Census Bureau intended to use a single arrest, regardless of the underlying circumstances, to disqualify an applicant.  Moreover, the inquiry into arrest history – regardless of how old the arrest was, underlying circumstances, or disposition –  deterred or excluded many of the best qualified applicants with arrest records that were irrelevant to census-taking (such as, minor misdemeanors that are decades old and which could not reasonably be job-related), because these are precisely the kind of records that are the most difficult to find.

Such a strict use of arrest records as an employment screening criteria meant that people of color, in particular Blacks and Latinos, were disproportionately denied employment because they constitute a disproportionate share of criminal arrests nationwide. Because of the enormous scope of hiring for the 2010 Census, the discriminatory impact of this was profound. Ironically, the Census Bureau expressed a desire to reach communities at risk of being undercounted, particularly low-income people of color and immigrants, by hiring within those communities, yet it erected an unnecessary and discriminatory obstacle to achieving that very goal.

Plaintiffs brought this class action suit as a disparate impact challenge pursuant to Title VII of the Civil Rights Act.  Under the disparate impact doctrine (which does not require a showing of intentional discrimination), the Census Bureau violated Title VII by using an employment screening device that had a racially disproportionate effect on African American, Latino, and Native American applicants.   The plaintiffs argued that Census’s discriminatory practice was not justified by business necessity, and its legitimate interests could be achieved through less discriminatory means.

Case Timeline

November 18, 2014

District Court stays discovery while the parties proceed with settlement discussions and mediation before a different Magistrate Judge

November 18, 2014

District Court stays discovery while the parties proceed with settlement discussions and mediation before a different Magistrate Judge

October 2, 2014

District Court grants Plaintiffs’ request to reinstate the claims of Plaintiff Gonzalez and amend the plaintiff class definition to include Latino Census job applicants and accepts Plaintiffs’ Third Amended Complaint for filing.

October 2, 2014

District Court grants Plaintiffs’ request to reinstate the claims of Plaintiff Gonzalez and amend the plaintiff class definition to include Latino Census job applicants and accepts Plaintiffs’ Third Amended Complaint for filing.

September 16, 2014

Plaintiffs ask the Court to reconsider and amend its July 1, 2014 Decision

September 16, 2014

Plaintiffs ask the Court to reconsider and amend its July 1, 2014 Decision

Plaintiffs ask the Court to reinstate the claims of one of the dismissed Latino plaintiffs, Anthony Gonzalez, and amend the class definition to include Latino Census job applicants.  In addition, Plaintiffs ask the Court for leave to file a 3rd Amended Complaint adding two more Latino named plaintiffs. 

July 1, 2014

District Court grants in part both Plaintiffs' Motion for Class Certification and Defendants’ Motion to Dismiss

July 1, 2014

District Court grants in part both Plaintiffs' Motion for Class Certification and Defendants’ Motion to Dismiss

The District Court certified a plaintiff class for injunctive relief (but not damages), which included all African American applicants for jobs with the 2010 Census who were denied employment because of two racially discriminatory hiring criteria. However, the Court refused to certify a class of Latino Census job applicants and dismissed the claims of the individual Latino plaintiffs for lack of standing.

December 16, 2013

Defendants move to dismiss Second Amended Complaint

December 16, 2013

Defendants move to dismiss Second Amended Complaint

June 28, 2013

Plaintiffs move for class certification

June 28, 2013

Plaintiffs move for class certification

September 21, 2012

Plaintiffs file Second Amended Complaint

September 21, 2012

Plaintiffs file Second Amended Complaint

March 22, 2012

District Court denies Defendants’ Motion to Dismiss Plaintiffs’ claims for declaratory and injunctive relief

March 22, 2012

District Court denies Defendants’ Motion to Dismiss Plaintiffs’ claims for declaratory and injunctive relief

March 15, 2011

Defendant's Motion to Dismiss partially granted

March 15, 2011

Defendant's Motion to Dismiss partially granted

District Court grants in part Defendants' motion to dismiss the First Amended Complaint, dismissing the individual claims of two of the seven named plaintiffs and dismissing without prejudice all of the class-wide claims.

August 5, 2010
First Amended Complaint filed
August 5, 2010
First Amended Complaint filed
April 13, 2010
Complaint filed
April 13, 2010
Complaint filed