Thursday, June 12, 2014

Weighing in on Wal-Mart - Part Four – Issue Class Certification

I am concluding here with my four-part discussion on what I view as the best ways for plaintiffs to act collectively following the Supreme Court's Wal-Mart decision. This post features a final unique procedural tool: issue class certification (discussed in much greater detail in the attached article).

Federal Rule of Civil Procedure 23(c)(4)(A) allows issue class certification, which permits common issues in a systemic claim to be certified for review while all other issues in the case are litigated independently.  In my view, the issue class is the most appealing tool available to employment litigants seeking to act collectively in light of the Wal-Mart decision. It does not offer all the benefits of a traditional class-action claim, but it does preserve many of the advantages. The rule provides specifically,

Particular Issues. When appropriate, an action may be brought or maintained as a class action with respect to particular issues.”

Issue class certification is often used where there is a shared set of facts common to all litigants, but where individuals have each suffered distinct damages in the case. Employment discrimination claims often fit neatly within these requirements. For example, many systemic workplace cases will involve common employees, common company policies, and common corporate practices. Nonetheless, damages in employment discrimination cases are almost always individualized, as workers will suffer varying degrees of harm depending on the facts of the particular situation.

Following Wal-Mart, the issue class may be the best available mechanism for systemic employment actions.  In a recent case, McReynolds v. Merrill Lynch & Co., Judge Posner (writing for the Seventh Circuit) approved an issue class in a case involving the impact of an employer’s policies on minority workers in the financial industry.  This case demonstrates that the issue class is much more than simply a theoretical tool available to workers, and can be used as a way of helping to circumvent the problems presented by the commonality requirement of Wal-Mart.  Workplace claims will often have unique aspects that will undermine complete commonality in a systemic discrimination case. The issue class allows plaintiffs to collectively pursue the common issues in a case while still allowing individualized determinations to be made on the other issues.

I encourage others to weigh in the comments below on different ways that issue class certification (or other procedural tools) can be used as a way of effectuating the antidiscrimination statutes. I am very appreciative to the Workplace Prof Blog for the opportunity to share my views on this important case, and I am hopeful that it will spark further conversation on the various ways plaintiff can proceed after Wal-Mart.


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