Obtaining and Challenging Class Certification in Employment Discrimination Pattern and Practice Cases, page 3

Obtaining and Challenging Class Certification (continued)

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The Rule 23(a)(3) typicality requirement and the Rule 23(a)(2) commonality requirement "tend to merge," and a finding of commonality ordinarily will support a finding of typicality. See General Telephone v. Falcon, 457 U.S. at 157 n.13. If a court finds that the practices are uniform and centralized, the court will generally conclude that the plaintiffs' claims are typical of those of the class. Barefield, 44 F.E.P. Cases at 1890; Harriss v. Pan American World Airways, Inc., 74 F.R.D. 24 (N.D. Cal. 1977).

Commonality of issues is relatively clear in cases involving a uniformly applied, "objective" test, or such objective criteria as height or weight. See, e.g., Dothard v. Rawlinson, 433 U.S. 321, 328-31 (1977) (addressing height and weight requirement for correctional officers); Harriss v. Pan American World Airways, Inc., 74 F.R.D. 24 (N.D. Cal. 1977) (addressing a maternity leave requirement for flight attendants). In Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988), the Supreme Court held that "Title VII's proscription against discriminatory actions" applies not only to such "objective" tests, but also applies equally to "an employer's undisciplined system of subjective decision-making . . ." where such a system has a disparate impact on protected groups. Id. at 990-991. Since Watson, many courts have found sufficient commonality where an employer has a company-wide policy of delegating decision-making to low-level managers who employ subjective and unvalidated decision-making criteria. See, e.g., Publix, supra; Home Depot, supra; Hartman v. Duffy, 158 F.R.D. at 539; Stender v. Lucky Stores, 803 F. Supp. 259, 319 (N.D. Cal. 1992); Jenson v. Eveleth Taconite Co., 139 F.R.D. 657 (D. Minn. 1991). As the D.C. Circuit has explained,

where a plaintiff charges that subjective employment decisions have allowed the employer systematically to discriminate on the basis of gender in choosing among the minimally qualified applicants, the potential for common issues of law and fact among applicants for different positions clearly exists regardless of individual differences in job descriptions or minimal qualifications.

Hartman, 19 F.3d at 1472.

C. Certification Under Rule 23(b)(2)

Because employment discrimination class actions primarily seek declaratory and injunctive relief, they are properly certified under Rule 23(b)(2). See, e.g., Home Depot, supra; Publix, supra. Indeed, in AmChem Products, Inc. v. Windsor, 117 S. Ct. 2231 (1997), the Supreme Court stated:

Rule 23(b)(2) permits class actions for declaratory or injunctive relief where "the party opposing the class has acted or refused to act on grounds generally applicable to the class." Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples.

Id. at 2245; see also Notes of Advisory Committee to 1966 Amendment, 39 F.R.D. 69 (1966).

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