Labor & Employment Law Daily Wrap Up, LITIGATION NEWS, TRENDS—Second Circuit affirmed dismissal of social work exam takers’ claims that state licensure exams were discriminatory, (May 20, 2026)

By Brandi O. Brown, J.D.

They had alleged that test takers who are Black or Hispanic are “far less likely” to pass than test takers who are white, pointing to the social work association’s data about passing rates.

In Alameda v. Association of Social Work Boards, the Second Circuit, in an unpublished summary order, affirmed, as modified, the district court’s dismissal of a putative class action by social work exam takers levying claims of racial discrimination by the Association of Social Work Board (ASWB), which is the nonprofit organization that develops, administers, and scores exams used by government entities to license candidates as Licensed Master Social Workers (LMSW) and Licensed Clinical Social Worker (LCSW). The named plaintiffs are exam takers who repeatedly failed one of those two exams.

Data and study. The test-takers, relying on data made available by ASWB, as well as a report by Rutgers School of Social Work faculty (the “Rutgers study”), claim that the exams produced disparate outcomes for Black and Hispanic/Latino candidates and that the defendant intentionally maintained those disparities in violation of Title VII, 42 U.S.C. § 1981, and the New York State Human Rights Law. They alleged that test takers who are Black or Hispanic are “far less likely” to pass than test takers who are white. For example, in the court below they cited statistics from the Rutgers Study that they asserted “conclude[] that Black test takers were 5.193 times more likely to fail, and Hispanic/Latino test takers 2.009 times more likely to fail, than their [w]hite counterparts.”

The exam takers claim that because of the exams, they have been unable to obtain licenses and have lost out on opportunities for employment and career advancement. They allege that the ASWB has been aware for years of the racial disparities in testing outcomes, but that it has not modified the exams.

Title VII claims. Regarding their Title VII claims, the appeals court explained that the plaintiffs’ claims failed because they did not plausibly allege an employer-employee relationship with ASWB. Title VII liability generally requires such a relationship, and no exception applied in this case to that general rule. The court rejected the argument that ASWB could be liable as a third party performing delegated employment functions, emphasizing that licensing authority rests with the New York State Education Department, and it is that department, rather than the plaintiffs’ employers, that requires them to pass those exams to obtain licenses. Thus, no employment duties were delegated to ASWB.

Section 1981. Next, the court agreed the Section 1981 claim failed because the plaintiffs failed to plausibly allege intentional discrimination. Although they relied heavily on statistical disparities in exam outcomes, those disparities were not sufficiently stark to exclude alternative, nondiscriminatory explanations. Moreover, the plaintiffs offered no meaningful non-statistical allegations supporting discriminatory intent. The court rejected the plaintiffs’ attempt to offer the results of a study by Rutgers of the LCSW exam as relevant with respect to the LMSW exam and, as to the LCSW exam, the differences were insufficient to make other plausible, nondiscriminatory explanations very unlikely. They also did not make any other circumstantial allegations that would permit the inference that ASWB intended the different outcomes revealed by the study.

Finally, the court upheld the district court’s decision to decline supplemental jurisdiction over the NYSHRL claim, noting that plaintiffs waived any challenge and that dismissal was appropriate at an early stage. However, it modified the judgment to clarify that the state claim was dismissed without prejudice.

The case is No. 25-2531.

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