RESPONDING TO THE RESTRICTION OF EMPLOYMENT DISCRIMINATION CLASS ACTIONS
Michael Lieder, Partner, Mehri & Skalet
When I began representing employees in civil rights class actions more than 30 years ago, meeting the Rule 23 standards to certify a class composed of a broad range of employees was far easier than it is today. In my first case, the district court certified a class of all African American non-exempt employees claiming that the electric utility serving much of the Washington, DC metropolitan area discriminated in a variety of human resource practices. Afterward, we negotiated a settlement involving payment of $38 million and, more important, broad injunctive relief that made the company a much fairer place to work, as company representatives acknowledged to us several years later.
Unfortunately, court decisions have foreclosed these types of broad classes and settlements providing broad transformative relief. These decisions generally restrict plaintiffs to narrow classes challenging specific employment practices. Two ongoing cases brought by my current firm (Mehri & Skalet) along with the firms of Willenson Law LLC and Hughes Socol Piers Resnick & Dym related to applicants and employees at the Cook County Jail exemplify the new realities and suggest possible responses.
In Simpson v. Dart, we are challenging a multi-step hiring process for Cook County correctional officers that weeds out Black applicants at four times the rate of White applicants. We sought certification of a class of Black applicants and five subclasses, one for each of the five principal steps in the hiring process. The class would pursue disparate treatment claims and the subclasses would pursue disparate treatment and disparate impact claims. The district court denied our motion as to the class and each subclass on the basis that we had not shown commonality under Rule 23(a).
In our 23(f) petition, we did not seek review of the denial of certification for the overall class or the subclasses challenging the last two principal steps in the correctional officer hiring process. It was especially difficult to relinquish the challenge to the fourth step, which involved discretionary decisions by a small group of decision-makers that eliminate Black applicants at much higher rates than White applicants. We instead petitioned only as to the denial of classes challenging the first three steps – consisting of two written tests and a physical fitness test – and limited the claims of the proposed classes to disparate impact.
The Cook County Sheriff’s Office failed to adopt reasonable measures to curtail sexual harassment of female employees at the Cook County Jail.
The Seventh Circuit, in an excellent opinion written by Trump appointee Michael Scudder in January 2022, reversed the denial of certification of the classes challenging the first three steps and remanded the case to the district court. The Seventh Circuit explained that the district court had conflated disparate impact and disparate treatment claims and added that disparate impact claims challenging exams “almost necessarily present questions common to the class.” It also explained that Rule 23 commonality (1) did not require plaintiffs’ disparate impact statistics to control for racially neutral factors and (2) was not defeated by validation of a test for use at other employers. While we are pleased by the decision, we regret that a class is no longer challenging two steps in the hiring process that also disproportionately weed out Black candidates.
The opposite procedural dynamic occurred in 2019 and 2020 in a case brought by the same three firms, along with Noelle Brennan & Associates and Kulwin, Masciopinto & Kulwin, claiming that the Cook County Sheriff’s Office had failed to adopt reasonable measures to curtail sexual harassment of female employees at the Cook County Jail. The district court certified the proposed class of about 2,000 women but the Seventh Circuit reversed the certification in March 2021. It held that because there were different levels of harassment at different divisions within the Jail complex, not all class members were similarly subject to harassment and that measures the Jail had adopted might have been inadequate in some divisions but adequate in others. We think that the appeal was wrongly decided because, among other reasons, the administrators’ policies were uniform throughout the Jail and employees change assignments within the Jail so that someone in a less hostile division today might be in a more hostile one three months from now.
If we had anticipated the Seventh Circuit’s decision when the case was filed, we might have pled several smaller classes but ruled out that approach after the Seventh Circuit reversed class certification because of China Agritech. But widescale intervention after denial of a class is seldom a viable strategy because of the small size of individual claims and the reluctance of employees to sue their employer.
The arc of employment discrimination class action law is bending away from justice. As a result, plaintiffs’ lawyers frequently have to self-censor, generally in the opening complaint or the class certification motion, or as we did in Simpson at the 23(f) stage. Maximizing the chances for certification may require defining the class or multiple small classes so as to eliminate potential class members, claims, or forms of relief. Unfortunately, this type of self-censorship deprives employees of the possibility of obtaining the types of broad reforms that we were once able to achieve and hopefully can again pursue in the future as the law evolves.