Obtaining and Challenging Class Certification in Employment Discrimination Pattern and Practice Cases, page 4

Obtaining and Challenging Class Certification (continued)

Page 4

Ironically, passage of the 1991 Civil Rights Act -- which was designed to broaden the scope of protection and relief for plaintiffs in Title VII cases -- has led many defendants to argue that Rule 23(b)(2) certification is no longer appropriate in employment discrimination class actions. Pursuant to 42 U.S.C. § 1981a(a)(1), emotional distress and punitive damages are now available for the first time to plaintiffs in Title VII cases alleging intentional discrimination. As a result, defendants often now contend that monetary relief overwhelms any declaratory or injunctive relief, such that certification under Rule 23(b)(2) is not proper. However, courts long have held that the mere fact that plaintiffs seek monetary damages in addition to declaratory injunctive relief does not preclude certification under Rule 23(b)(2). See Probe v. State Teachers' Retirement System, 780 F.2d at 780; Home Depot, 1996 U.S. Dist. LEXIS at *14. Further, this argument ignores the long line of cases certifying Rule 23(b)(2) classes involving claims for monetary relief and damages as well as injunctive relief under 42 U.S.C. § 1981. See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463 (1975); Johnson v. Goodyear Tire and Rubber Co., 491 F.2d 1364, 1375, 1379 (5th Cir. 1974); Domingo v. New England Fish Co., 727 F.2d 1429, 1433-34, 1442 (9th Cir.), modified on other grounds, 742 F.2d 520 (9th Cir. 1984); Gore v. Turner, 563 F.2d 159, 166 (5th Cir. 1977); Barefield, 48 F.E.P. Cases at 909-911; Sumlin v. Brown, 420 F. Supp. 78 (N.D. Fla. 1976). Because the damages relief to which plaintiffs are now entitled under the 1991 Civil Rights Act for intentional discrimination is, for these purposes, identical to that always available to plaintiffs under § 1981, the rationale of these cases is equally applicable to Title VII claims today.

Furthermore, in making the argument that damages overwhelm injunctive relief in Title VII cases, defendants often ignore the fact that it is well established that back-pay and front-pay are equitable relief, and not treated as monetary damages in the Title VII context. See 42 U.S.C. § 2000e-5(g) (listing backpay as one form of equitable relief to which plaintiffs may be entitled); see also, generally, U.S. v. Burke, 504 U.S. 229, 238-39 (1992) (Title VII back-pay is not an award of tort-like damages but rather a form of equitable relief). Accordingly, even with the potential availability of emotional distress and punitive damages, the injunctive and equitable relief sought by the plaintiffs in an employment discrimination class action almost always overwhelm any monetary damages sought. Moreover, emotional distress and punitive damages are available only on a disparate treatment claim, not a disparate impact claim, so that there is no reason why disparate impact claims cannot be certified under Rule 23(b)(2) even after the 1991 Civil Rights Act.

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