Tuesday, May 12, 2015

Fourth Circuit's Application of Wal-Mart

The U.S. Court of Appeals for the Fourth Circuit issued a fascinating opinion yesterday in Brown v. Nucor Corporation, which found error in a district court's decision not to certify a Title VII class following Wal-Mart.  The case alleged “endemic” discrimination on the basis of race by steel workers employed at a South Carolina facility.  The discrimination allegedly involved improper promotion practices and harassment under Title VII and Section 1981. From the decision:

"We . . . confront the question of whether the workers’ have presented a common question of employment discrimination through evidence of racism in the workplace. Despite Wal-Mart’s reshaping of the class action landscape, we hold that the district court has for a second time erred in refusing to certify the workers’ class, where (1) statistics indicate that promotions at Nucor depended in part on whether an individual was black or white; (2) substantial anecdotal evidence suggests discrimination in specific promotions decisions in multiple plant departments; and (3) there is also significant evidence that those promotions decisions were made in the context of a racially hostile work environment." 

This case presents a wonderful example of the difficulty in applying the commonality standard created by the Supreme Court in Wal-Mart, which I have explored here.  The case includes an extensive ninety page dissent (154 pages here total), so if you are looking for some light summer reading, this presents just such an opportunity.  The case exemplifies the differing views on this issue.

-- Joe Seiner


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