PRACTITIONER BLOG
Read our analyses of developments in Impact Litigation and stay current on class action law
RESPONDING TO THE RESTRICTION OF EMPLOYMENT DISCRIMINATION CLASS ACTIONS
The arc of employment discrimination class action law is bending away from justice. As a result, plaintiffs’ lawyers frequently have to self-censor, generally in the opening complaint or the class certification motion, or as we did in Simpson at the 23(f) stage. Maximizing the chances for certification may require defining the class or multiple small classes so as to eliminate potential class members, claims, or forms of relief. Unfortunately, this type of self-censorship deprives employees of the possibility of obtaining the types of broad reforms that we were once able to achieve and hopefully can again pursue in the future as the law evolves.
Distinguishing Dukes: Another Victory For Employment Discrimination Class Actions
Employers have consistently taken the position that challenges to employment processes that involve some element of subjectivity – and most do – cannot be brought on a class basis after Dukes. According to the logic of this argument, only non-discretionary evaluation measures, such as standardized tests or physical fitness tests, will satisfy commonality under Rule 23(a). Fortunately, a recent opinion from the Southern District of New York joins the growing list of decisions rejecting this extreme position.