Obtaining and Challenging Class Certification in Employment Discrimination Pattern and Practice Cases, page 2

Obtaining and Challenging Class Certification (continued)

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B. Rule 23(a)'s Requirements

Of the four Rule 23(a) requirements, numerosity is rarely in dispute in employment discrimination class actions. As few as 40 putative class members generally suffices. See 1 Newberg on Class Actions (3d ed. 1992), § 3.05 at 3-25. The Rule 23(a)(4) adequacy requirement also generally is not disputed in employment cases, although it sometimes becomes an issue in a situation where there are potential conflicts between different groups of class members. For example, defendants sometimes contend that a class member who was an employee cannot adequately represent class members who were applicants. However, classes comprising both employees and applicants can be certified together, see General Telephone v. Falcon, 457 U.S. at 159 n.15, and courts have rejected the view that an employee cannot adequately represent applicants. See, Home Depot, 1996 U.S. Dist. LEXIS at *11; Hartman v. Duffy, 19 F.3d 1459, 1471-72 (D.C. Cir. 1994); Richardson v. Boyd, 709 F.2d 1016, 1020 (5th Cir.), cert. denied, 464 U.S. 1009 (1983). As the D.C. Circuit has explained, there is no "requirement of 'congruence' between the job categories of named plaintiffs and those of the putative class." Hartman, 19 F.3d at 1471.

The Rule 23(a)(2) requirement that there be common questions of law and fact is a routine -- and sometimes tenacious -- battleground in class certification motions. Defendants invariably argue that the employment decisions affecting class members vary from individual to individual, decision-maker to decision-maker, hiring practice to hiring practice, and facility to facility. To overcome these arguments, plaintiffs argue that common discriminatory practices infect all of defendants' employment decisions throughout the proposed class. As numerous courts have noted, "race discrimination is peculiarly class discrimination." Senter v. General Motors Corp., 532 F.2d 511, 524 (6th Cir.), cert. denied, 429 U.S. 870 (1976); see also, General Telephone v. Falcon, 457 U.S. at 157. Proof that an employer has operated under a "general policy of discrimination" warrants class certification where such a policy manifests itself "in the same general fashion" throughout the employer's company. See General Telephone v. Falcon, 457 U.S. at 159 n.15; Hartman, 19 F.3d at 1471-72; Senter, 532 F.2d at 524. It is often critical for plaintiffs to demonstrate that the employer's procedures and criteria are uniform across the company. Where the court concludes that the defendants' personnel practices are uniform and centralized, it is more likely to find that plaintiffs have satisfied the commonality element. See, e.g., Barefield v. Chevron U.S.A., Inc., 44 F.E.P. Cases (BNA) 1885, 1987 U.S. Dist. LEXIS 15125 (N.D. Cal. 1987); Publix, supra; Home Depot, supra; Hartman v. Duffy, 158 F.R.D. 525 (D.C. Cir. 1994), aff'd in part, remanded in part on other grounds, 88 F.3d 1232 (D.C. Cir. 1996), cert. denied, 117 S. Ct. 1884 (1997). Conversely, if a court finds that the defendants' practices vary from facility to facility and decision-maker to decision-maker, it likely will not certify the class. See, e.g., Jackson v. Motel 6, 130 F.3d 999 (11th Cir. 1997); Appleton v. Deloitte & Touche, 168 F.R.D. 221 (M.D. Tenn. 1996); Zapata v. IBP, 167 F.R.D. 147 (D. Kan. 1996).

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