Obtaining and Challenging Class Certification in Employment Discrimination Pattern and Practice Cases, page 8

Obtaining and Challenging Class Certification (continued)

Page 8

The proof of the pattern or practice supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy. The [plaintiff] need only show that an alleged individual discriminate unsuccessfully applied for a job and therefore was a potential victim of the proved discrimination. As in Franks, the burden then rests on the employer to demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.

Teamsters, 431 U.S. at 361.

Accordingly, it is not necessary in the disparate treatment context for each individual class member to satisfy the McDonnell-Douglas test, and a disparate treatment class can properly be certified following the procedures set forth in Teamsters.

F. Certification Under Rule 23(b)(3)

In a few cases recently, plaintiffs in discrimination cases have sought certification under the Rule 23(b)(3) provision that provides for certification where common issues predominate over individual issues. See, e.g., Jackson v. Motel 6, 130 F.3d 999 (11th Cir. 1998). In the Motel 6 case, which did not involve employment discrimination but rather discrimination in accommodation, the Eleventh Circuit found that plaintiffs failed to establish a predominance of common issues. Given what the court characterized as a need to conduct "distinctly case-specific inquiries into the facts surrounding each alleged incident of discrimination," the Eleventh Circuit found there to be insufficient commonality of issues to warrant class treatment. Id. at 1006. Significantly, the Eleventh Circuit did not address whether certification might have been appropriate in that case under Rule 23(b)(2). Equally significant, the Motel 6 case involved primarily accommodation claims, rather than employment claims, and the plaintiffs presented only anecdotal evidence and did not present any statistical evidence in support of their claims that defendant was engaging in a pattern and practice of discrimination.

G. Hybrid Rule 23(b)(2)/23(b)(3) Certification

Historically, some courts have chosen to certify the Stage I liability and injunctive relief portion of employment discrimination class actions pursuant to Rule 23(b)(2), and either deferred certification of the damages portion of the trial, or certified the damages phase pursuant to Rule 23(b)(3). The Home Depot case is a recent example of just this procedure. In Home Depot, the court certified the Stage I liability trial pursuant to Rule 23(b)(2), but chose to "defer ruling on class certification with respect to the second phase of th[e] trial," stating that "at such a time as it becomes necessary, the Court will adopt an approach that the Court and the parties can agree will best protect the rights of absent class members and defendant, in adjudicating the remaining issues." Home Depot, 1996 U.S. Dist. LEXIS at *18-19; see also Publix, supra. While such a procedure may be particularly appropriate in light of the damages now available to plaintiffs as a result of the 1991 Civil Rights Act, it is by no means a new procedure. See, e.g., Officers for Justice v. Civil Service Comm'n, 688 F.2d 615 (9th Cir. 1982); Barefield, 48 F.E.P. Cases at 912.

CONCLUSION

Whether a class is certified or not is critical to the overall success and value of an employment discrimination case. Accordingly, it is in the interests of both plaintiffs and defendants to focus substantial attention and resources on litigating the class certification issue.

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