May 23, 2019
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. l:17-cv-03244 -
Charles R. Norgle, Judge.
Bauer, Manion, and Brennan, Circuit Judges.
Manion, Circuit Judge.
plaintiffs, on behalf of themselves and those similarly
situated, allege a racially discriminatory hiring scheme that
has resulted in a lack of Hispanic and Latino line workers at
Ford Motor Company's Chicago assembly plant. The district
court dismissed the suit for failure to exhaust
administrative remedies, holding the plaintiffs' claims
were not "like or reasonably related to" the claims
asserted in their EEOC charges. Because we conclude that the
claims included in Count II of the plaintiffs' complaint
were properly exhausted before the EEOC, we vacate the
district court's dismissal of Count II and remand for
further proceedings. We also modify the district court's
dismissal of Count I to be without prejudice.
seven named plaintiffs are Hispanic or Latino individuals who
applied for employment as line workers at Ford's Chicago
assembly plant near Harvey, Illinois, but were not hired.
Allan Millender is a black Ford employee and the Chairman of
the United Auto Workers union for the Chicago plant. The
plaintiffs allege a conspiracy between Millender, the staff
of the Harvey unemployment office, and unknown Ford
employees. This claimed conspiracy ensured the Chicago plant
predominantly hired black employees to the exclusion of
Hispanic and Latino applicants, allegedly because Mil-lender
believed black employees would be more likely to support him
in his role as a union leader. This resulted in a
predominantly black workforce at the plant and a dearth of
Hispanic and Latino workers, despite a sizable minority of
Hispanic and Latino people in the surrounding
complaint alleges line workers at the Chicago plant are hired
exclusively through the Harvey unemployment office. The
office collects application forms from individuals interested
in applying for line worker positions at the Chicago plant.
These forms are then sent to Ford, which compiles the
information and forwards it to Aon Consulting, a third-party
firm that administers a variety of pre-employment tests. One
test Aon administers is a basic skills test. Applicants who
pass the required pre-employment tests, a drug test, and a
background check are sent back to Ford to move forward in the
plaintiffs claim the actual operation of this hiring process,
under Millender's influence and control, is
discriminatory against Hispanic and Latino applicants. In
February 2016, the named plaintiffs each filed an EEOC
charge, alleging they were denied employment with Ford based
on their race.These charges were largely, though not
entirely, identical. Each alleged Millender established a
discriminatory hiring process, setting forth the following
(1) Hispanic and Latino applicants are intentionally
discriminated against, or disparately impacted, by the
pre-employment basic skills test;
(2) Even those Hispanic and Latino applicants that do pass
this test are discriminated against by having their
applications "stalled in some other way;"
(3) Those Hispanic or Latino applicants who are considered by
Ford are rarely, if ever, hired; and finally
(4) Several non-Hispanic and non-Latino applicants have been
hired without taking the basic skills test.
one plaintiff (Stephanie Galan) alleged she personally
"took a pre-employment basic skills test." The
others simply alleged they filled out a pre-application
questionnaire and were either never contacted or not
ultimately hired. None of the charges alleged the plaintiffs
were prevented from taking the basic skills test, or that
their contact information was destroyed or mishandled by the
unemployment office staff or not forwarded to Aon by Ford.
Instead, each charge (even those of the plaintiffs who did
not allege they took the basic skills test) included the
following allegation: "By agreement with the Harvey
unemployment office, Hispanic applicants are allowed to apply
and take pre-employment tests, but rarely pass basic skills
testing." Thus, the focus of the charges was on the
discriminatory impact or administration of the basic skills
test, or the intentional stalling of the applications of
and/or refusal to hire those applicants who passed the test.
plaintiffs each received "Right to Sue" letters
from the EEOC in January 2017. They commenced this case in
federal court in April 2017, seeking to certify it as a class
action. They set forth two claims under Title VII: disparate
treatment (Count I) and disparate impact (Count II). The
complaint contained allegations supporting two alternative
theories of discrimination: "Either the pre-employment
testing creates an impermissibly adverse impact on Hispanics
and/or Latinos, or Ford itself is excluding those of Hispanic
and/or Latino descent from being processed for hire."
22-32 contain allegations supporting the first theory:
"the pre-employment testing creates an impermissibly
adverse impact on Hispanics and/or Latinos." These
paragraphs set forth the following allegations:
(1) Ford almost exclusively hires line workers through the
Harvey unemployment office;
(2) Most, if not all, of the line workers hired are black;
(3) The plaintiffs each applied for a line worker position
through the Harvey unemployment office, and each was
qualified for such position, but they ...