Obtaining and Challenging Class Certification in Employment Discrimination Pattern and Practice Cases, page 5

Obtaining and Challenging Class Certification (continued)

Page 5

D. Bifurcation

Bifurcation of employment discrimination class actions into a Stage I liability phase certified pursuant to Rule 23(b)(2), to be followed by a Stage II individual compensatory damages phase has long been held proper by courts, including the Supreme Court. In International Brotherhood of Teamsters v. United States, 431 U.S. 324, 359-62 (1977), the Supreme Court described how a Title VII class action should be separated into two stages. According to Teamsters, employment discrimination class actions should be bifurcated into a first "liability" stage, in which the burden is upon the plaintiff "to demonstrate that unlawful discrimination has been a regular procedure or policy followed by [the] employer . . . ." Id. at 360. The burden then shifts to the employer "to provide a non-discriminatory explanation for the apparently discriminatory result." Id. at n.46. If the employer fails to rebut the inference of discrimination that arises from the prima facie case, Teamsters provides for a second, "remedial" stage of the trial to "determine the scope of individual relief to which victims are entitled." Id. at 361.

Numerous courts have followed the Teamsters two-stage bifurcation procedure in structuring Title VII class action trials. See Domingo v. New England Fish Co., 727 F.2d 1429, 1434 (9th Cir.), modified on other grounds, 742 F.2d 520 (9th Cir. 1984); Sledge v. J.P. Stevens & Co., 585 F.2d 625, 637 (4th Cir. 1978), cert. denied, 440 U.S. 981 (1979); Wells v. Meyer's Bakery, 561 F.2d 1268, 1277 (8th Cir. 1977); United States v. United States Steel Corp., 520 F.2d 1043, 1053-56 (5th Cir. 1975), cert. denied, 429 U.S. 817 (1976); Home Depot, 1996 U.S. Dist. LEXIS at *18-19; Barefield, 48 F.E.P. Cases at 909-911. Further, the leading treatises on class actions support the notion that employment discrimination class actions have been and should be tried in separate stages under Rule 42(b). See Manual for Complex Litigation 3d, § 33.54 (1995); Newberg on Class Actions, § 24.123, at 24-414. An additional advantage of such bifurcation, which typically involves a time interval between the two stages of litigation, is that it provides the parties with an opportunity to settle the action if plaintiffs prevail at the liability phase of the proceeding, or, at the very least, affords the parties an opportunity to agree on streamlined or mutually acceptable Stage II adjudicatory procedures.

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