Steven Trebach, CLS ’22
Having a criminal record is, in the United States, a clear detriment to one’s employability.[1] Given the makeup of the American prison system, this disadvantage to ex-felons face likely falls most heavily on the African-American community, which experiences a far higher rate of incarceration than other communities.[2] This dynamic has become so explicitly racialized, that certain strategies, such as “Ban the Box ” which stop employers from requiring applicants to disclose a criminal record may have backfired.[3] Employers, wanting to avoid hiring people with felony records, assume African American men have undisclosed criminal records and avoid hiring them[4] In this context, the Second Circuit determined not to rehear en banc the case Mandala v. NTT Data, Inc.[5]
Mandala and Barnett (Plaintiffs), African-American men with past criminal records, were denied positions they had previously been offered at NTT Data, Inc. (NTT) in 2017 because of their criminal records.[6] In response, they brought a class action lawsuit against NTT, alleging the company had violated Title VII for racial discrimination.[7] Refusing to hire formerly incarcerated people, these Plaintiffs argue, “disqualifies a disproportionate number of African-American applicants” because of their aforementioned disproportionate rate of incarceration.[8] Despite the Plaintiffs proffering the statistical data demonstrating the higher rate of arrest and incarceration of African-Americans, when pleading their case, “the district court dismissed the complaint for failure to state a claim.”[9] A 2-1 split panel of the Second Circuit would go on to uphold this ruling, indicating “it is error for Plaintiffs to simply presume that population-level statistics will accurately describe subgroups of that population,” specifically the subgroup of people qualified to work at NTT.[10]
The Second Circuit’s decision not to rehear this case en banc raised dissent beyond the original dissenting judge.[11] In addition to including reiterations of the statistical disparities in criminalization of African Americans,[12] a major crux of the dissent was that the panel majority was willing to make “inferences favoring the Defendants while declining to make obvious inferences for Plaintiffs that would rebut the central basis of the panel majority’s reasoning,” thus incorrectly applying Federal Rule of Civil Procedure 12(b)(6).[13] The ultimate fear is that the panel has created a higher than usual standard for pleading that threatens to founder valid civil rights litigation for failure to state a claim.[14]
The ABA Journal article that drew the attention of this Journal to the case seems to be firmly on the side of the dissent, ending the article with a dissenting judge’s statement that “the panel majority ‘uses a statistical sleight of hand to hide the clear implications of NTT’s blanket policy.’”[15] While there is likely some truth to the dissent’s assertion, the potential problem may not be as far reaching as the dissent fears.
The panel and several other circuit judges, in a concurring opinion, respond to the dissent’s fears in a manner that seems to narrow the ultimate significance of the ruling to the specific facts of the Plaintiffs’ pleading. For example, a major crux of the dissent was that the panel erroneously narrowed what should be considered NTT’s applicant pool, relative to the general population.[16] The concurrence indicates, however, that the Plaintiffs’ complaint had, in fact, suggested the range of viable candidates for the position was narrower than the general population.[17] Thus, although this individual case may have been a step backward in the struggle to mitigate the burden of post-incarceration life on the African-American community, it could very well be a limited one.
[1] Binyamin Appelbaum, Out of Trouble, but Criminal Records Keep Men Out of Work, The New York Times, Feb. 28, 2015.
[2] John Gramlich, Black imprisonment rate in the U.S. has fallen by a third since 2006, Pew Research Center – Fact Tank, May 6, 2020 (African-American are incarcerated at a rate roughly seven times per capita higher than white Americans, and almost twice as high as Hispanic Americans).
[3] Casey Leins, More Data Needed to Determine Whether ‘Ban the Box’ Laws Work, U.S. News and World Report, Sept. 10, 2019 (“Some studies show that ban the box laws could actually have a negative impact: When employers aren’t allowed to ask about applicants’ criminal background early in the hiring process, they may be more likely to assume certain applicants – especially black and Hispanic men – have a criminal history, denying jobs to qualified applicants who don’t have a criminal history.”).
[4] See Id.
[5] See Mandala v. NTT Data, Inc., No. 19-2308-cv (2d Cir. Feb. 23, 2021).
[6] See Mandala v. NTT Data, Inc., 975 F.3d 202, 205-06 (2d Cir. 2020).
[7] See id. at 206.
[8] Id.
[9] See Id.
[10] Id. at 211.
[11] See Mandala v. NTT Data, Inc., No. 19-2308-cv (2d Cir. Feb. 23, 2021).
[12] See id. (p.7 of Judge Chin’s dissent).
[13] See id. (p.1 of Judge Pooler’s dissent).
[14] See id. (p.1 of Judge Chin’s dissent).
[15] Debra C. Weiss, 2nd Circuit won’t consider reinstating suit alleging refusal to hire felons amounts to hiring bias, ABA Journal, Feb. 24, 2021.
[16] See Mandala v. NTT Data, Inc., No. 19-2308-cv (2d Cir. Feb. 23, 2021) (p.27 of Judge Chin’s dissent).
[17] See id. (pp. 2-3 of concurrence).