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Discrimination Lawsuit Against City And County Of Denver Heads To Trial

By Jeff Todd

DENVER (CBS4) - A class action lawsuit nearly a decade in the making against the City and County of Denver will go to trial Monday morning.

The 912 plaintiffs say the city used a discriminatory test during the hiring process around 2007 and 2008.

"What that test did was eliminate Hispanics and blacks almost twice as many as it did whites and therefore it was racially discriminatory," said Kenneth Padilla, who is representing the plaintiffs in this case.

The AccuPlacer/WritePlacer test was created by The College Board and is most commonly used to determine incoming freshman's English level placement.

"This test was not validated. That means it didn't have anything to do with job performance. If you passed the test it didn't mean you would do better at the job," said Padilla.

Joaquin and Ken Padilla
Joaquin and Ken Padilla, representing the plaintiffs in the lawsuit, are interviewed by CBS4's Jeff Todd (credit: CBS)

The case says more than 40 percent of Hispanics and blacks applying for jobs with Denver failed the test while only 25 percent of whites failed. The test was administered for a variety of jobs from animal control to office assistants.

"Once they failed they were out, could not be considered (for a job). They were told, 'You failed the test, pick up your things and leave,'" Padilla said.

In 2008 the U.S. Equal Employment Opportunity Commission determined discrimination had taken place.

"I have considered all the evidence obtained during the investigation and find that there is reasonable cause to believe that there is a violation of Title VII in that respondent failed to conduct a validity test on the AccuPlacer test used in its employment process," said Nancy Sienko, the Field Office Director for the EEOC. "As a result, a statistical analysis revealed responded discriminated against black applicants. Furthermore, the statistical analysis also revealed that the above-mentioned test discriminated against Hispanic/Latino male applicants."

City Attorney Scott Martinez told CBS4, "Our policy is not to comment on pending litigation where we are a party, especially on the eve of trial, to respect the integrity of the judicial process."

"Our expert has estimated the damages as $18.3 million," Padilla said.

Joaquin and Ken Padilla
Joaquin and Ken Padilla are representing the plaintiffs in the lawsuit (credit: CBS)

In the most recent defendant's trial brief the litigators for the city argued that the plaintiff's request for damages is grossly overestimated.

"While in hindsight it may be easy to call a reading comprehension test given to high school students racist, there was no evidence that the city was aware that the test had not been validated for employment purposes, and once it was discovered, the city immediately discontinued its use," the brief said.

The city also argues that passing the test would not have guaranteed employment or promotion for the plaintiffs.

"If they would have had a job, a good paying job when we were in the throes of a recession and all those years they lost income, they lost benefits," Padilla said. "We are seeking justice for these individuals."

Jeff Todd joined the CBS4 team in 2011 covering the Western Slope in the Mountain Newsroom. Since 2015 he's been working across the Front Range in the Denver Headquarters. Follow him on Twitter @CBS4Jeff.

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