Obtaining and Challenging Class Certification in Employment Discrimination Pattern and Practice Cases, page 7

Obtaining and Challenging Class Certification (continued)

Page 7

Teamsters, 431 U.S. at 361-62. Thus, the jury in the Stage II proceeding does not revisit the already-decided factual issue of discrimination.

E. Class Certification in Disparate Treatment Cases

Defendants sometimes argue that, whatever the merits of class certification for purposes of a disparate impact claim, disparate treatment claims cannot be certified on a classwide basis. In support of this argument, defendants contend that each individual class member must satisfy the disparate treatment framework set out by the Supreme Court in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

Under McDonnell-Douglas, a plaintiff alleging discrimination bears the initial burden of showing that: (1) the plaintiff is a member of a protected class; (2) the plaintiff applied for an advertised position; (3) the plaintiff was rejected despite being qualified for the position; and (4) similarly situated non-protected employees were hired or the employer sought a replacement with qualifications similar to the plaintiff's qualifications. Id. at 802. Defendants sometimes contend that this highly individualized four prong test makes class certification of a disparate treatment claim impossible. However, the Supreme Court explained in McDonnell-Douglas that this formula is not the only means by which a plaintiff can establish a prima facie case of intentional discrimination, id. at n.13, and held in Teamsters that in the context of a class action, plaintiffs need not satisfy the McDonnell-Douglas test but may make out a prima facie case of discrimination against class members by demonstrating the existence of a statistically significant pattern or practice of discrimination. Id. at 359-60 (citing Franks v. Bowman Transportation Co., Inc., 424 U.S. 747, 772 (1976)). If the plaintiff succeeds in establishing a prima facie case, there is a presumption or inference that the defendant engaged in unlawful discrimination against the plaintiffs. That presumption shifts the burden of production to the defendants who must rebut the prima facie case by producing evidence that the employment decisions were made for legitimate, non-discriminatory reasons. Teamsters, 431 U.S. at 359-60; Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-54 (1981). In Teamsters, the Supreme Court explicitly rejected the defendant's argument that each individual plaintiff's claim must be proven at the Stage I liability trial. As the Court held,

the petitioners' contention in this case is that if the [plaintiff] has not, in the course of proving a pattern or practice, already brought forth specific evidence that each individual was discriminatorily denied an employment opportunity, it must carry that burden at the second, "remedial" stage of trial. That basic contention was rejected in the Franks case. As was true of the particular facts in Franks, and as is typical of Title VII pattern-or-practice suits, the question of individual relief does not arise until it has been proved that the employer has followed an employment policy of unlawful discrimination. The force of that proof does not dissipate at the remedial stage of the trial. The employer cannot, therefore, claim that there is no reason to believe that its individual employment decisions were discriminatorily based; it has already been shown to have maintained a policy of discriminatory decision making.

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