Disparate Impact and the Non-Traditional Plaintiff

At the start of the year, I noted that one thing that seemed to be a "trend" was litigation by non-minority plaintiffs. See, 2011 -- the Year of the Non-Minority?

Throughout the year I have noted other cases. And now Molly DiBianca who is always on top of things at the Delaware Employment Law Blog has picked up yet another case recently decided by the 3rd Circuit, Disparate Impact of Newark, NJ’s Residency Requirement .

In Meditz v. City of Newark, (9.28.11) [pdf] a white male analyst job applicant was rejected by the City of Newark because he did not live within the city limits. The Court summarized the case in perfect disparate impact terms:

Meditz alleges that the residency requirement adopted by Newark for its non-uniformed work force has a disparate impact on white, non-Hispanics because Newark‟s population does not reflect the racial make-up of the relevant labor market in the surrounding area. As a result, white, non-Hispanics are under-represented in Newark‟s non-uniformed work force.

Although there were a number of statistical comparisons, one was between the City of Newark and Essex County, the county had 42.96 % white, non-Hispanic employees in the non-uniformed ranks compared to Newark's 9.24%.

The decision has a good discussion not only about the statistical basis for finding disparate impact, but how to determine the relevant job market and the correct standard for the business necessity defense.

About the only thing that this case does not stand for is that lawyers are being more receptive to bringing claims on behalf of non-minority plaintiffs. Mr. Meditz represented himself, including at oral argument.