Duane Morris Discrimination Class Action Review – 2024

DISCLAIMER The material in this Review is of the nature of general commentary only. It is not meant as or offered as legal advice on any particular issue and should not be considered as such. The views expressed are solely those of the authors. In addition, the authors disclaim any and all liability to any person in respect of anything and of the consequences of anything done wholly or partly in reliance on the contents of this Review. This disclaimer is from the Declaration of Principles jointly adopted by the Committee of the American Bar Association and a Committee of Publishers and Associations.

CITATION FORMATS All citations in the Duane Morris Discrimination Class Action Review are designed to facilitate research. If available, the preferred citation of the opinion included in the West bound volumes is used, such as Baysal, et al. v. Midvale Indemnity Co., 78 F.4th 976 (7th Cir. 2023). If the decision is not available in the preferred format, a Lexis cite from the electronic database is provided, such as Moehrl, et al. v. National Association of Realtors, 2023 U.S. Dist. LEXIS 53299 (N.D. Ill. Mar. 29, 2023). If a ruling is not available in one of these sources, the full case name and docket information is included, such as Yates, et al. v. Traeger Pellet Grills , Case No. 19-CV-723 (D. Utah Sept. 7, 2023). eBOOK HIGHLIGHTS The Duane Morris Discrimination Class Action Review is available for use on a smartphone, laptop, iPad, or any personal electronic reader by using any eBook reader application. eBook reading allows users to quickly scroll, highlight important information, link directly to different sections of the Review, and bookmark pages for quick access at a later time. The eBook is designed for easy navigation and quick access to informative data. The eBook is available by scanning the below QR code:

Duane Morris Discrimination Class Action Review – 2024

NOTE FROM THE EDITORS The stakes at issue in class action litigation are typically significant and are apt to keep corporate counsel and senior management up at night. A company ’ s market share and corporate reputation are often implicated by a class action and these exposures and risks put immense pressure on corporate decision- makers. The purpose of the Duane Morris Discrimination Class Action Review is multi-faceted. We hope it will demystify some of the complexities of class action litigation, and keep corporate counsel updated on the ever-evolving nuances of Rule 23 issues in the discrimination space. In this respect, we hope this book will provide our clients with an analysis of trends and significant rulings that enable them to make informed decisions in dealing with complex litigation risks. Class actions challenging employment policies and practices has a robust history since passage of the Civil Rights Act of 1964. For decades, federal courts routinely granted class certification in nationwide discrimination class actions, which often spiked settlements that entailed huge pay-outs and across-the- board changes to HR systems. In turn, significant changes in the workplaces of Corporate America resulted from class action precedents, massive settlements, and injunctive relief orders. Ultimately, as the class action landscape continues to evolve, so too are the playbook theories of the plaintiff and defense bars. Counsel on both sides are becoming more sophisticated and creative in their approaches to prosecuting and defending class actions. Courts are facing increasing pressure to quickly and efficiently discern between properly pled actions and meritless litigation, not only to promote court expediency but also to spare businesses the incredible expense that accompanies class defense. Defense of discrimination class actions is a hallmark of the litigation practice at Duane Morris. We hope this book – manifesting the collective experience and expertise of our class action defense group – will assist our clients by identifying developing trends in the case law and offering practical approaches in dealing with discrimination class action litigation.

Gerald L. Maatman, Jr.

Jennifer A. Riley

Editor

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Duane Morris Discrimination Class Action Review – 2024

CONTRIBUTORS

Duane Morris Discrimination Class Action Review – 2024

GLOSSARY AND KEY U.S. SUPREME COURT DECISIONS Adequacy Of Representation – Plaintiffs must show adequacy of representation per Rule 23(a)(4) to secure class certification. It requires representative plaintiffs and their counsel to be capable of fairly and adequately protecting the interests of the class. Amchem Products, Inc. v. Windsor, et al. , 521 U.S. 591 (1997) – Windsor is the U.S. Supreme Court decision that elucidated the requirements in Rule 23(b), insofar as common questions must predominate over any questions affecting only individual class members and class resolution must be superior to other methods for the adjudication of the claims. Ascertainability – Although not an explicit requirement of Rule 23, some courts hold that the members of a proposed class must by ascertainable by objective criteria. Comcast Corp. v. Behrend, et al. , 569 U.S. 27 (2013) – Comcast is the U.S. Supreme Court decision that interpreted Rule 23(b)(3) to require that, for questions of law or fact common to the class, the plaintiffs’ damages model must show damages are capable of resolution on a class-wide basis. Commonality – Plaintiffs must show commonality per Rule 23(a)(2) to secure class certification. This requires that common questions of law and fact exist as to the proposed class members. Class – A group of individuals that has suffered a similar loss or alleged illegal experience on whose behalf one or more representatives seek to bring suit. Class Action – The civil action brought by one or more plaintiffs in which they seek to sue on behalf of themselves and others not named in the suit but alleged to have suffered the same or similar harm. Class Certification – The judicial process in which a court reviews the submissions of the parties to determine whether the plaintiffs have met their burden of showing that class treatment is the most appropriate form of adjudication. In federal courts, the process is governed by Rule 23 of the Federal Rules of Civil Procedure. Cy Pres Fund – In class action settlement agreements, this is the money set aside for distribution to a § 501(c) organization when class members do not return a settlement claim form and money is left over after distribution to the class. Decertification – Following an order granting conditional certification of a collective action or certification of a class action, a defendant can move for decertification based on the grounds that the members of the collective action are not actually similarly-situated or that the requirements of Rule 23 are no longer satisfied for the class action. Epic Systems Inc. v. Lewis, et al. , 138 S. Ct. 1612 (2018) – Epic Systems is the U.S. Supreme Court decision holding that arbitration agreements requiring individual arbitration and waiving a litigant ’ s right to bring or participate in class actions are enforceable under the Federal Arbitration Act. Opt-Out Procedures – If a court certifies a class under Rule 23(b)(3), class members are bound by the court ’ s judgment unless they opt-out after receiving notice of the lawsuit. Numerosity – Plaintiffs must show that their proposed class is sufficiently numerous that adding each class member to the complaint would be impractical. This is a requirement for class certification imposed by Rule 23(a)(1).

Duane Morris Discrimination Class Action Review – 2024

Ortiz, et al. v. Fibreboard Corp., 527 U.S. 815 (1999) – Ortiz is the U.S. Supreme Court ruling that interpreted Rule 23(b)(3) to require personal notice and an opportunity to opt-out of a class action where money damages are sought in a class action. Predominance – The Rule 23(b)(3) requirement that, to obtain class certification, the plaintiffs must show that common questions predominate over any questions affecting individual members. Rule 23 – This rule from the Federal Rules of Civil Procedure governs class actions in federal courts and requires that a party seeking class certification meet four requirements of section (a) and one of three requirements under section (b) of the rule. Rule 23(a) – It prescribes that a class meet four requirements for purposes of class certification, including numerosity, commonality, typicality, and adequacy of representation. Rule 23(b) – To secure class certification, a class must meet one of three requirements of Rule 23(b)(1), Rule 23(b)(2), or Rule 23(b)(3). Rule 23(b)(1) – A class action may be maintained if Rule 23(a) is satisfied and if prosecuting separate actions would create a risk of inconsistent or varying adjudications with respect to individual class members or adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests. Rule 23(b)(2) – A class action may be maintained if Rule 23(a) is satisfied and the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. Rule 23(b)(3) – A class action may be maintained if Rule 23(a) is satisfied and questions of law or fact common to class members predominate over any questions affecting only individual members and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Superiority – The Rule 23(b)(3) requirement that a class action can be permitted only if class resolution is the superior method of adjudicating the claims. Typicality – The plaintiffs’ claims and defenses must be typical to those of proposed class members’ claims. This is required by Rule 23(a)(3). Wal-Mart Stores, Inc. v. Dukes, et al., 564 U.S. 338 (2011) – Wal-Mart is the U.S. Supreme Court ruling that tightened the commonality requirement of Rule 23(a)(2) and held that judges must conduct a “rigorous analysis” to determine whether there is a “common” contention central to the validity of the claims that is “capable of class-wide resolution.”

Duane Morris Discrimination Class Action Review – 2024

TABLE OF CONTENTS

Page

1. Executive Summary……........................................ .............................................1

2. Signficiant Rulings In Discrimination Class Actions In 2023 ......................... 2

3. Top Discrimination Class Action Settlements In 2023 .................................. 13

4. Table Of 2023 Class Action And Collective Action Litigation Rulings ......... 15

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Discrimination Class Actions I. Executive Summary Class action litigation in the discrimination space remains an area of key focus of skilled class action litigators in the plaintiffs’ bar.

In 2023, courts granted class certification 50% of the time, and denied certification in 50% of the cases. Class actions challenging employment policies and practices has a robust history since passage of the Civil Rights Act of 1964. For decades, federal courts routinely granted class certification in nationwide employment discrimination class actions, which often spiked settlements that entailed huge pay-outs and across-the-board changes to HR systems. In turn, significant changes in the workplaces of Corporate America resulted from class action precedents, massive settlements, and injunctive relief orders. This changed in large part over a decade ago when the U.S. Supreme Court decided Wal- Mart Inc. v. Dukes, et al. , 564 U.S. 338 (2011). That decision reversed a class certification order in a pay and promotions lawsuit involving 1.5 million class members who asserted claims of sex discrimination in pay and promotions. In handing down this ruling, the Supreme Court tightened the legal requirements for securing class certifications. It simultaneously forced the plaintiffs’ bar to adjust their strategies on how to prosecute class actions, while also fueling new defense strategies for opposing class certification motions. Suddenly gone were the

days when nationwide class actions challenging hiring, compensation, and promotion policies of large corporations inevitably ended with across the board certification orders and big settlement checks. But the pendulum appears to be swinging back, as courts are becoming increasingly inclined to find for plaintiffs in class certification rulings, and thereby raising the potential for large monetary remedies. This is especially true in the discrimination context, as society continues to grapple with widespread inequality in the wake of large scale social justice campaigns like Black Lives Matter and the #MeToo movement. Businesses are being confronted with increasingly employee-friendly legislative changes and a more aggressive plaintiffs’ bar. But despite the rising rates of discrimination-based class action lawsuit filings, courts have remained steadfast in their application of Wal-Mart and allowing class actions to proceed only where all requirements have been satisfied. Whether it be establishing commonality across the putative class or satisfying the court ’ s insistence for adequate representation, courts have not shied away from demanding litigants demonstrate compliance with Rule 23, readily dismissing lawsuits and denying class certification for cases

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that cannot clear this hurdle. This rigorous analysis to determine whether all prerequisites have been met frequently operates as the make-or-break point of any case. In particular, plaintiffs often run into trouble meeting the criteria for commonality. In the discrimination arena, this typically requires plaintiffs to establish an alleged practice or policy of discrimination common across the putative class, including, as necessary, across departments and even state lines. But as defense counsel and courts alike are quick to point out, the class representative is burdened with establishing more than his or her own experience and attributing it across the prospective class to survive Rule 23(a) scrutiny. In this sense, a plaintiffs’ certification burden must go beyond the run of the mill assertion, “I was harmed, and others likely were too.” Ultimately, as the class action landscape continues to evolve, so too are the playbook theories of the plaintiff and defense bars. Counsel on both sides are becoming more sophisticated and creative in their approaches to prosecuting and defending class actions. Courts are facing increasing pressure to quickly and efficiently discern between properly pled actions and meritless litigation, not only to promote court expediency but also to spare businesses the incredible expense that accompanies class defense. As a result, motions to dismiss and challenges to class certification are quickly turning into pivotal benchmarks in any class action litigation. Still, the plaintiffs’ bar remains undeterred. As public opinion of large businesses wanes, and while workplace inequality continues to grab headlines and remains forefront in the public eye, employers can expect discrimination class actions to reach even greater heights in 2024. II. Significant Rulings In Employment Discrimination Class Actions In 2023 1. The Supreme Court Reverses Decades Of Precedent In Students For Fair Admissions, Inc., et al. v. President And Fellows Of Harvard College Perhaps the most influential discrimination decision handed down in the last several years, Students For Fair Admissions, Inc., et al. v. President And Fellows Of Harvard College, Case No. 20-1199 (U.S. June 29, 2023), asked the U.S. Supreme Court, for the third time, to examine whether higher institutions’ race- conscious admission policies violated Title VII of the Civil Rights Act (Title VII) and the Fourteenth Amendment ’ s Equal Protection Clause. After dismissing standing concerns, the Supreme Court pivoted to the merits, relying heavily on decades’ worth of racial discrimination jurisprudence, and ultimately rejected the universities’ race-conscious admissions programs. In his majority opinion, Justice Roberts held the defendants’ admissions programs were not narrowly tailored to survive strict scrutiny. Specifically, they lacked sufficiently focused and measurable objectives warranting the consideration of race; employed race as a negative marker, and not just a “plus” factor; and lacked meaningful or measurable end points to sunset the practice. As a result, the defendants’ race-conscious admissions policies therefore violated the Equal Protection Clause. The dissenting minority, however, were quick to point out that the Fourteenth Amendment itself is not race-neutral, having been enacted at the close of the Civil War to avoid discrimination against former enslaved persons entering civic and commercial society. Accordingly, the dissenting justices rebuked the majority ’ s suggestion that the Equal Protection Clause demanded a form of color-blindness, and decried this position as conflicting with the amendment itself. Still, their opinion would not carry the day, as the Supreme Court reversed the lower court judgments, declaring the defendants’ admissions practices unconstitutional, and paving the way for further upheaval in affirmative action programs across the country. 2. Rulings On Class Certification Motions Commonly Turn On Commonality Employers defeated class certification motions in 2023 by attacking the basis of the motions as insufficient under Rule 23. Hornbook case law demands that plaintiffs establish each element underlying Rule 23(a), and dictating a pathway for class certification under Rule 23(b). This type of defense strategy challenges the proof offered in support of the class certification motion.

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The best example of this successful defense strategy was on display in Feeley, et al. v. City Of New York, 2023 U.S. Dist. LEXIS 50809 (E.D.N.Y. Mar. 23, 2023), where the plaintiff, a former automobile mechanic, sought to represent a class of similarly-situated female workers who sought and received insufficient accommodations to express breast milk, and were otherwise discriminated against in violation of Title VII. The defendants challenged the plaintiffs’ motion for class certification on the grounds that Rule 23 ’ s commonality, typicality, and adequacy of representation elements were not met. The court ultimately agreed. It noted that the named plaintiff ’ s personal experience – such as being denied a regular location to express milk, requiring her to physically clock-out while in the middle of pumping, and receiving negative performance evaluations and difficult assignments after complaining – were not alleged as applying to the purported class a whole or as reflective of a larger practice of harassment. Indeed, the plaintiffs failed to offer any statistical or anecdotal evidence of any nursing mother describing her experience, including articulating what requests for accommodations were made and denied. Nor did plaintiff ’ s allegations reflect a system-wide or standard operating procedure of discrimination beyond conclusory allegations of unequal treatment. The court denied the plaintiffs’ motion for class certification because these failures doomed plaintiffs’ commonality and typicality obligations (to say nothing of the propensity of plaintiffs’ counsel for missing deadlines, which the court deemed a “red flag” for proper representation), rendering plaintiff ’ s claims incapable of class-wide resolution. Id. at *11. Speer, et al. v. Ucor LLC , 2023 U.S. Dist. LEXIS 198889 (E.D. Tenn. Nov. 6, 2023), further embodied this trend. In that case, the plaintiffs filed a class action alleging that the defendant ’ s COVID-19 vaccine mandate violated their religious beliefs in violation of Title VII. The plaintiffs specifically asserted that employees who requested religious exemptions were subsequently denied those requests and received adverse employment actions. Id. at *2. The plaintiffs filed a motion for class certification pursuant to Rule 23, and the court denied the motion. Id. at *24. The court found that in analyzing the issue of predominance under Rule 23(b)(3), the individualized nature of determining sincerely held religious beliefs and the reasonableness of accommodations would make it difficult to identify common questions of law and fact that would predominate over individual issues for each plaintiff. Id. at *21-23. Accordingly, the court denied the plaintiffs’ motion for class certification on the basis that common issues did not predominate. Id. at *23. In Edmond, et al. v. City Of Chicago, 2023 U.S. Dist. LEXIS 98174 (N.D. Ill. June 6, 2023), the plaintiffs, nine African-American workers currently or previously employed by the Chicago Department of Water, brought a putative class action against the City of Chicago and several individuals employed by it in 2017, alleging race discrimination and a hostile work environment. The plaintiffs alleged the existence of an ongoing and pervasive “culture of racism” fostered by organizational leadership across five bureaus and various sub-bureaus, treatment plants, and construction sites. Id. at *6. The lawsuit was brought after the City ’ s Inspector General uncovered emails containing racist exchanges between Department commissioners and deputies, which resulted in resignations of two executives. Id. The plaintiffs alleged that the hostile work environment included racially offensive language, threatening gestures, and disparate treatment of Black employees in violation of 42 U.S.C. §§ 1981 and 1983 and Illinois law. They filed a motion for certification of a class that included all Black workers employed by the Water Department since 2011 and three sub-classes for individuals who had been eligible for overtime, those with disciplinary infractions, and those who had been denied promotions. In 2018, the court granted the defendants’ partial motion to dismiss. The plaintiffs then brought a motion to amend the complaint in order to drop the individuals from the suit, which was granted without prejudice. Subsequently, the plaintiffs filed a motion to certify the classes pursuant to Rule 23. The defendants argued that because the plaintiffs were unable to establish a shared work environment in their hostile work environment claim due to the Department ’ s dispersed workforce, the plaintiffs failed to identify a common contention whose resolution would resolve class claims, as required under Rule 23(a)(2) ’ s commonality element. The court agreed with this position. It opined that there was no “evidence of common areas shared by all Department employees or instances of harassment broadcast across the entire Department.” Id. at *13. The court found that the experience of putative class members varied across the Department, with individual claims of discrimination ranging from

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verbal to visual conduct, while others alleged bias in duty assignments or disciplinary actions. The plaintiffs additionally contended that a pervasive culture of discrimination permeated the Water Department. They cited statements made by members of the city administration and the Inspector General ’ s investigation, and posited that this was proof of a “ de facto policy of racism” across the workplaces. Id. at *15. The court was not convinced that this had a uniform impact on all the plaintiffs and putative class members to satisfy the commonality question, and it denied the motion for class certification based on failure to meet this threshold under Rule 23(a). The court also rejected the plaintiffs’ arguments for certification of each sub- class based on a pervasively racist culture. The court concluded that disciplinary, overtime, and promotion decisions were made by individual supervisors based on their personal discretion and varied across the Department, and that the plaintiffs failed to show evidence that the same decision-makers were responsible for such actions. Id. at *27. The court was not convinced by Plaintiffs’ expert witness’ use of statistical data to show a disparate impact, noting that similar evidence had not been sufficient to demonstrate commonality. For these reasons, the court denied the plaintiffs’ motion for class certification. But even a defendant ’ s initial victory at the class certification stage can be short-lived, as shown by what transpired in Gordon, et al. v. Jordan School District, 2023 U.S. App. LEXIS 78 (10th Cir. Jan. 4, 2023). In Gordon , the district court certified a class on Plaintiffs’ Fourteenth Amendment Equal Protection Clause claims, but not under Title IX, following allegations that the defendant school districts refused to create separate football leagues for its female students. On a subsequent appeal, the Tenth Circuit derided the district court for confusing commonality under Rule 23(a)(2) with Rule 23(b)(3) ’ s predominance factor. The plaintiffs, according to the Tenth Circuit, properly identified a common factual issue shared between the purported class – namely, a reasonable interest in establishing a girl ’ s football program. While the level of interest and competition might vary between schools – a fact the district court relied upon in denying certification – the Tenth Circuit reasoned that this issue went to predominance, which was irrelevant to the remedy plaintiffs were seeking. Accordingly, the Tenth Circuit vacated the ruling, and ordered the district court to reconsider its denial of class certification. Meanwhile, in Baker, et al. v. UPS, 2023 U.S. Dist. LEXIS 115334 (E.D. Wash. July 5, 2023), the plaintiffs prevailed at class certification. The plaintiffs sought remedies under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) when their employer did not provide paid time off to employees on short term military leave. On their motion for class certification, the plaintiffs pointed to a potential class size of 440 individuals to support numerosity; argued commonality was established by comparing available military leave to similar short term leave, like bereavement; maintained their claims were typical of the class because they challenged the same military leave policy; and represented that class counsel possessed significant experience litigating complex actions. While not disputing the first and last factors, the defendants contested that the underlying issues were sufficiently common across the purported class, which they simultaneously argued undermined typicality. The court rejected these defense arguments. It held that the plaintiffs had done enough at this juncture in the litigation to identify common questions of law and fact. Moreover, the court held that the plaintiffs had satisfactorily shown these common questions predominated over any individualized inquiries, even though the defendants’ affirmative defense for laches could ultimately prove fatal to their claims. Finally, the court found that class certification would be the superior method of adjudication, considering the interests of individual class members, existing litigation, the choice of forum, and the feasibility of managing the case as a class action. For these reasons, the court granted the plaintiffs’ motion for class certification. In a matter regarding disability discrimination claims, the plaintiffs in Lowell, et al. v. Lyft, Inc ., 2023 U.S. Dist. LEXIS 50722 (S.D.N.Y. Mar. 24, 2023), an individual and the organization Westchester Disabled on the Move, Inc., filed a class action alleging violations of the Americans with Disabilities Act (ADA) for failing to provide accessible transportation services for individuals with disabilities. The Magistrate Judge recommended that the court grant in part the plaintiffs’ motion for class certification. On Rule 72 review, the court subsequently adopted the Magistrate Judge ’ s findings and granted the motion. The defendant challenged the plaintiffs’ standing to bring their claims and also argued that the plaintiffs failed to meet the requirements for Rule 23 class certification. The defendant contended that the plaintiffs failed to establish

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Article III standing, because they failed to show that they had a plausible intent to return and use the defendant ’ s services. The court found that the Magistrate Judge correctly determined that the plaintiffs established an injury in fact, a causal connection between the injury and the conduct complained of in the case, and a likelihood that a favorable judicial decision would redress the injury. Accordingly, the court rejected the defendant ’ s challenge regarding the plaintiffs’ standing. In addition, the court upheld the Magistrate Judge ’ s determination that numerosity was met based on statistical data and declarations from putative class members. The court agreed with the Magistrate Judge that the commonality requirement was met because the plaintiffs challenged the defendant ’ s policies and practices that were allegedly discriminatory on a class-wide basis. The court reasoned that the core issue of the defendant ’ s policy was uniform and would resolve all class claims. The court also agreed with the Magistrate Judge that the typicality requirement was satisfied because the claims of the named plaintiffs and the putative class members arose from the same course of conduct by the defendant. The court found that the named plaintiffs were adequate class representatives and that their interests were aligned with those of the putative class members. Finally, the court upheld the Magistrate Judge ’ s recommendation that the requirements for class certification under Rule 23(b)(2) were met. The court concluded that the plaintiffs satisfied the necessary requirements for class certification and determined that class certification was appropriate for the proposed classes in the case. As these decisions demonstrate, commonality is a frequent obstacle to certifying class actions in the discrimination context. The courts focus on whether the plaintiffs are able to define a single issue of law or fact necessary to resolve class-wide disputes. In the discrimination space, this frequently hinges on establishing a company-wide practice or policy of discrimination. Class action lawsuits that fail to clear this bar are ripe for rejection at the certification stage.

3. Rulings On Class Certification Motions Based On Superiority Rule 23(b(3) issues involving superiority also saw case law rulings in 2023.

In O’Hailpin, et al. v. Hawaiian Airlines Inc., 2023 U.S. Dist. LEXIS 220734 (D. Haw. Dec. 12, 2023), the plaintiffs filed a class action alleging that the defendant violated their rights under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) by discriminating against employees who requested medical or religious accommodations from the defendant’s COVID-19 vaccine policy. The plaintiffs filed a motion for class certification, and the court denied the motion. In response to the COVID-19 pandemic, President Biden issued Executive Order No. 14042, which was a Federal Contractor Mandate that required the defendant to implement a mandatory vaccination policy. Under the Federal Contractor Mandate and related guidelines, the defendant was required to have its unvaccinated employees masked and socially distanced in the workplace; thus, any exemptions to the vaccine policy would need to comply with those masking and distancing requirements. Id . at *3. The defendant received 568 reasonable accommodation requests related to its vaccine policy, including 496 for religious accommodations and 72 were for medical exemptions. Id . The defendant subsequently examined every work position and every work location to determine whether masking and distancing were feasible and concluded that for the majority of the positions, they were not. The defendant also implemented a "Transition Period Testing Program" or the "TPTP," which provided a deadline for unvaccinated employees to test while they decided whether or not to get vaccinated, and a 12-month unpaid leave of absence starting no earlier than January 5, 2022 for those who did not wish to get vaccinated and were not granted an accommodation. Id . at *6. The defendant ultimately ceased the TPTP as being too burdensome to administer effectively. The plaintiffs contended that the defendant used the TPTP as a pretext for denying accommodation requests. By January 5, 2022, employees who remained unvaccinated did not have an approved accommodation, or who were not on a leave of absence, were subject to termination proceedings and when the vaccine policy ended on October 1, 2022, those on the 12-month unpaid leave were provided an opportunity to return to work. Id . at *8-9. The plaintiffs proposed classes included "[a]ll Hawaiian employees who requested accommodation pursuant to Title VII or the ADA from Hawaiian's Mandate and had those accommodation requests denied by Hawaiian,” and two ADA sub - classes. Id . at *9. The court found that the proposed sub-

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classes that sought religious accommodations failed to establish that the question of whether each employees’ beliefs were sincerely held religious beliefs could be addressed on a class-wide basis. The court also stated that individualized inquiries would be required to determine whether a worker was a qualified individual with a disability. The court ruled that the plaintiffs failed to establish why the individualized assessment regarding the accommodations of masking and social distancing (or some other type of accommodation) for each distinct class member would not defeat typicality, commonality, and predominance. Id . The court therefore determined that a class action would not be the superior method of adjudication and denied the plaintiffs’ motion for class certification. 4. Rulings Granting Preemptive Motions To Strike And Dismiss Class Action Claims On The Face Of The Pleadings Aggressive defendants frequently seek to quell a class action before it even gets off the ground by attacking the sufficiency of the claims as they are pled in the complaint. If successful, the benefits of this strategy are plain and significant by eliminating the class allegations before the plaintiff ever gets to probe the defendant on their policies, procedures, or other practices in class-wide discovery. However, these efforts are often difficult, as they require convincing the court that no amount of discovery will alter the fact that plaintiffs’ claims or class certification theories are fundamentally flawed. But while difficult to prove, defendants can and do prevail, as was the case in Jirek, et al. v. Astrazeneca Pharmaceuticals LP, 2023 U.S. Dist. LEXIS 12667 (N.D. Ill. Jan. 25, 2023). The plaintiffs filed a class action seeking to represent other female sales employees who allegedly received less pay than their male counterparts. The defendant brought a motion to dismiss, and the court dismissed the federal and state law claims because the plaintiffs failed to satisfy their prima facie burden. The court opined that the complaint ’ s fundamental flaw was in failing to identify higher paid male comparators performing equal work. Neither the complaint ’ s overly broad job descriptions nor the plaintiffs’ insistence that these details would be unearthed during discovery were sufficient to allow the proposed class action to survive. The plaintiffs in O’Brien, et al. v. Amazon.Com, Inc., 2023 U.S. Dist. LEXIS 33775 (N.D. Cal. Jan. 27, 2023), met a similar fate. The plaintiffs, representing former Amazon warehouse employees, alleged violations of the California Fair Employment and Housing Act due to work quotas it maintained that allegedly caused a disparate impact on older employees. In dismissing the complaint, the court clarified it was the plaintiffs’ burden not only to identify the decision-making process that created a disproportionate impact, but also to isolate the specific employment practice allegedly responsible for the statistical disparity. The court found that plaintiffs failed to provide sufficient factual or statistical evidence demonstrating a causal connection between the defendant ’ s policies and a significant disparate impact. Ultimately, because the plaintiffs’ generalized assumptions about the effects of aging on physical ability could not support their claim, the court dismissed the action. Similarly, in Leake, et al. v. Raytheon Technologies Corp., 2023 U.S. Dist. LEXIS 32177 (D. Ariz. Feb. 27, 2023), a group of terminated employees, who previously declined to receive the COVID-19 vaccination and also refused to abide by the company ’ s mask policy and weekly testing accommodation, brought discrimination and retaliation claims under Title VII. Citing both religious and medical objections to the vaccine, the plaintiffs refused to comply with the company ’ s accommodations, which they argued were harassing and created a hostile work environment (together with company-wide emails and public signs promoting safety steps against the virus). The district court summarily rejected plaintiffs’ position. On their disparate treatment allegations, the court noted that the plaintiffs failed to identify membership in any protected class or what religious beliefs they held, and failed to distinguish their treatment from other exempt employees. Their hostile work environment claims were equally feeble, said the court, noting that COVID-19 prevention signs visible to all employees did not target the plaintiffs, nor were they unreasonable or harassing in and of themselves. Finally, the court concluded that the plaintiffs’ retaliation claims neither alleged that the employees engaged in a protected activity nor established a causal link between that activity and their termination. These failures provided the court ample support to dismiss the

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complaint in its entirety. COVID-19 also was front and center in the Ninth Circuit ’ s decision in Kincheloe, et al. v. American Airlines, Inc., 2023 U.S. App. LEXIS 11218 (9th Cir. May 8, 2023). In this case, a group of former flight attendants alleged that the defendant ’ s March 2020 Voluntary Early Out Program – enacted in response to the COVID-19 pandemic and allowing for early retirement – discriminated against older flight attendants. Under the Age Discrimination in Employment Act, bona fide early retirement programs are not adverse employment actions unless the employee can establish the working conditions were so intolerable that a reasonable person would have felt compelled to resign. Id. at *1. The complaint posited that such intolerable conditions were met after the defendant discouraged the use of face masks, denied leaves of absences, and reduced work schedules in a coordinated effort to push employees toward retirement. The district court granted the defendant ’ s motion to dismiss, and, on appeal, the Ninth Circuit affirmed. It found the employment conditions were reasonable and consistent with federal policy guidelines in effect at the time. Courts also issued rulings in class actions in 2023 in which plaintiffs alleged a discriminatory practice in violation of federal statutes. For example, in Spencer, et al. v. JRN, Inc., 2023 U.S. Dist. LEXIS 32885 (E.D. Ky. Feb. 28, 2023), the plaintiff, a customer using a wheelchair, filed a class action alleging that the defendant, a Kentucky Fried Chicken franchisee, violated the Americans with Disabilities Act (ADA) by installing ramps which were overly steep in its parking lots. The defendant filed a motion to dismiss pursuant to Rule 12(b)(1) on the grounds that the plaintiff lacked legal standing, and the court denied the motion. The plaintiff argued that he need only establish standing for the locations that caused him individual harm, and the class certification stage would be the appropriate time to determine whether he could obtain relief against the locations that he had not visited. The defendant contended that the plaintiff had no standing to seek relief for locations he had not visited unless the discrimination arose from a common architectural design or common policy. Id. at *5. The plaintiff contended that the defendant “maintain[s] the Restaurant buildings, drive-thrus, parking lots, and landscaped areas at each individual location in conformance with the specifications set forth in an [operating manual].” Id. at *18. Thus, the plaintiff asserted that the defendant utilized “centralized maintenance and operational policies,” which “have systematically and routinely resulted in excessive sloping conditions in the Parking Areas of Defendants’ facilities, in violation of the ADA.” Id. at *19. Further, the plaintiff contended that investigators examined 14 additional restaurant locations and found excessive sloping barriers in the parking areas of every location. Id. The court ruled the plaintiff sufficiently pled a common design or policy to confer standing because the investigated facilities shared similar violations and he alleged that the violations stem from a centralized facility maintenance policy. Id. For these reasons, the court denied the defendant ’ s motion to dismiss for lack of standing. In DeVooght, et al. v. City Of Warren, 2023 U.S. Dist. LEXIS 17967 (E.D. Mich. Feb. 2, 2023), the plaintiffs, a group of female dispatchers, filed a class action alleging that the defendant ’ s employment policy and practice requiring female dispatchers to perform intake searches of female arrestees, while male dispatchers were never required to perform searches, was discriminatory and unlawful. The plaintiffs asserted violations of the Equal Protection Clause, Title VII of the Civil Rights Act, and the Michigan Elliott- Larsen Civil Rights Act. The court issued a prior ruling on cross-motions for summary judgment, concluding that the policy presented direct evidence of discrimination. The court, however, recognized that the bona fide occupational qualification defense, an exception to the general rule prohibiting gender discrimination, could protect the defendant from plaintiffs’ claims. In analyzing the elements of the BFOQ defense, the court determined that the gender-specific policy of requiring female dispatchers to conduct searches on female arrestees when a female officer was not available, while not requiring male dispatchers to ever conduct searches, was “reasonably necessary” to the operation of the police department and that the policy related to the “essence, or to the central mission” of the police department. Id. at *2. The court reasoned that prisoners have a constitutional right to be searched by same-gender personnel, and the defendant ’ s percentage of female personnel employed has ranged from 5% to 15% of all sworn personnel over the last 20 years. Id. at *3. Accordingly, the court determined that it was possible that a female police

Duane Morris Discrimination Class Action Review – 2024

officer would not be working when a female detainee was required to be searched. The court noted that there were genuine issues of material fact as to whether there was a reasonable alternative that was not discriminatory. Following a two-day bench trial, the court determined that the plaintiffs failed to show that any of their five proposals for accomplishing the objectives of the policy without discriminating based on sex were reasonable. The court concluded that the proposed policies would not allow the city and the police department to move forward with the same amount of security, because the proposals would create gaps in policing the community and put the public and other officers at risk. The court therefor held that the judgement in favor of defendant should be affirmed. The defendants were yet again successful dismissing litigation early in Wilson, et al. v. Timec, 2023 U.S. Dist. LEXIS 157535 (E.D. Cal. Sept. 6, 2023), where the plaintiffs brought class-wide discrimination allegations under Title VII and the California Fair Employment Housing Act. The plaintiffs asserted that the defendant ’ s drug testing procedures were deficient because they commonly produced false positive results for black employees who the plaintiffs asserted were more likely to have melanin-rich hair. In considering the defendants’ motion for judgment on the pleadings as a motion to dismiss, the court identified several flaws contained within the complaint, including the plaintiffs’ failure to offer any allegations concerning the difference in melanin content among different races; how the drugs interacted with an individual ’ s hair; or even the risk of positive tests of melanin-rich hair. As a result, the court opined that the plaintiffs failed to allege any connection between race and the challenged employment practice, thereby warranting dismissal of their disparate impact claims. Moreover, the court reasoned that despite the fact that the plaintiffs allegedly informed defendants of the defective drug testing, this fact alone, did not establish discriminatory intent sufficient to prove intentional discrimination. The plaintiffs’ disparate treatment claims, therefore, failed as well. In discrimination class actions, disparate treatment and disparate impact theories are frequently pled together, commonly as alternative routes for liability. In order to plausibly plead under either theory, plaintiffs must offer enough facts to overcome the burdens established by the U.S. Supreme Court in the seminal rulings of Bell Atlantic Co. v. Twombly , 550 U.S. 544 (2007), and Ashcraft v. Iqbal , 556 U.S. 662 (2009). In Strifling, et al. v. Twitter Inc., 2023 U.S. Dist. LEXIS 154014 (N.D. Cal. May 8, 2023), plaintiffs did not meet this burden. Following mass layoffs brought on by Elon Musk ’ s purchase of Twitter Inc., a group of former female employees brought class claims alleging that the layoffs themselves, as well as subsequent resignations prompted by Musk ’ s “work longer, work harder” ultimatum, forced a disproportionate number of women to leave Twitter. Id. at *5. Even after acknowledging that the plaintiffs did not satisfactorily exhaust their administrative remedies, the court still found enough deficiencies in the complaint to warrant dismissing the disparate treatment and disparate impact claims. The court criticized the complaint for failing to allege basic facts, like what positions the plaintiffs held, their performance, or whether similarly-situated men were laid off, and therefore failed to establish a causal link to the protected class. Id. at *10. Additionally, the court reasoned that the complaint inexplicably did not allege that Twitter engaged in a pattern or practice of discrimination. While plaintiffs seemingly relied entirely on the layoffs and post-layoff resignations to support their claims, these two discrete acts were far from the routine and regular practice that courts typically expect. Id. at *11. Finally, despite Musk ’ s public comments toward women, the court pointed out that those cited in the complaint were made prior to his acquisition of the company. Id. at *15-16. The court concluded, therefore, that these stray remarks could not satisfy causation either. The plaintiffs’ disparate impact claims were similarly shot down, and again, causation was the pitfall: despite pinpointing Twitter ’ s delegation of layoff decisions to a small group of managers (and as to the discriminatory practice at issue, the complaint did not allege how this discretion caused the alleged gender disparity). Accordingly, the court also found that the plaintiffs failed to state a disparate impact claim. For these reasons, the court granted the defendant ’ s motion to dismiss. In a nearly identical lawsuit, former employees in Zeman, et al. v. Twitter, Inc., 2023 U.S. Dist. LEXIS 152666 (N.D. Cal. Aug. 29, 2023), also challenged Twitter ’ s mass layoff procedures, but this time arguing it constituted age discrimination in violation of both the Age Discrimination in Employment Act (ADEA) and New York State Human Rights Law (NYSHRL). Id. at *3. The defendant moved to dismiss the plaintiff ’ s

Duane Morris Discrimination Class Action Review – 2024

claims, arguing that he failed to state a claim under either an intentional discrimination or a disparate impact theory. Id. With respect to the disparate treatment claim, the defendant asserted that the claim failed because the plaintiffs did not demonstrate that they were performing their jobs satisfactorily or that younger employees treated differently from older ones were not terminated. Id. at *6. The court agreed. It held that the plaintiffs failed to state “sufficient, non-conclusory allegations plausibly linking the [adverse] action to discrimination.” Id. at 7. As to the plaintiffs’ ADEA disparate impact claim, the defendant moved for dismissal on the basis that the claim was based on a sub-group of the protected class, given that the ADEA only confers protection to individuals 40 and older. Id. at 8. The court rejected the defendant ’ s argument that the plaintiffs failed to state a cognizable disparate impact claim and explained “to read the disparate treatment provision to prohibit discrimination based on a class of individuals aged forty and over rather than based on age would contradict both the plain language of the statute and the Supreme Court ’ s holding in O’Connor [ v. Consol. Coin Caterers Corp. , 517 U.S. 308, 312 (1996)].” Id. at *10-11. Thus, court denied the defendant ’ s motion to dismiss the plaintiffs’ ADEA disparate impact claim. Id. at *11. On largely similar grounds, the court allowed the plaintiffs’ disparate impact claim under the NYSHRL and further reasoned that the statistical analysis that plaintiff introduced of an alleged statistically significant disparity in the defendant ’ s treatment of workers 50 years-old and older, as well as statistical evidence regarding employees 60 and older, “are enough to survive . . . at the pleadings stage.” Id. at *16. The plaintiffs therefore walked away with a partial victory, insofar as the court permitted them to pursue their disparate impact claims. Id. at *17. Another instance where the complaint was inadequately pled occurred in Dowdy, et al. v. New York City Department Of Sanitation, 2023 U.S. Dist. LEXIS 171625 (S.D.N.Y. Sept. 26, 2023). The plaintiffs sued on behalf of a class of New York City Department of Sanitation employees seeking relief under Title VII and the Equal Protection Act (EPA) due to what they asserted were arbitrary qualifications for higher-paying positions. According to the plaintiffs, these requirements deterred Sanitation Enforcement Agents, comprised primarily of minorities, from applying. The court, however, determined that the plaintiffs lacked standing to challenge the allegedly discriminatory selection policy, and the court dismissed the case. Specifically, no class member applied for the position in question, and while plaintiffs declared these attempts futile, they still failed to show even a single individual was able and ready to pursue the position. Moreover, the court found the complaint ’ s EPA claim was equally unsatisfactory, as it lacked any allegations that the two positions required equal skill, effort, responsibility, or similar working conditions. In light of these deficiencies, the court dismissed the claim, but with leave to amend. In National Center For Public Policy Research, et al. v. Schultz, 2023 U.S. Dist. LEXIS 161680 (E.D. Wash. Sept. 11, 2023), the defendants, Starbucks Corp. and individual board members, successfully dismissed litigation on grounds other than the usual failure to state a claim standard outlined in Rule 12(b)(6). In this shareholder derivative lawsuit, an advocacy group holding less than 1% of Starbucks shares sued for the defendants’ alleged breach of their fiduciary duties when the defendants rejected a demand letter to cease and desist certain diversity initiatives the advocacy group declared “woke.” Id. at *4. In calling out the plaintiffs for pursuing their own political agenda in the lawsuit, the court granted the defendants’ motion to dismiss for failing to satisfy the requirements of Rule 23.1(a), which required the plaintiffs to adequately represent the interest of other shareholders. Because plaintiffs also failed to establish breach of the business judgment rule, the court held that the lawsuit was ripe for dismissal. Finally, in Stouffer, et al. v. Union R.R. Co., LLC , 2023 U.S. App. LEXIS 28443 (3d Cir. Oct. 26, 2023), a former railroad employee appealed the dismissal of his ADEA claims alleging a scheme of discrimination against a putative class of older workers. On appeal, the Third Circuit first addressed whether the plaintiff ’ s claims were precluded by the Railway Labor Act (RLA), which establishes arbitration boards with exclusive jurisdiction to resolve disputes over the interpretation or application of Collective Bargaining Agreements (CBAs) in the railroad industry. Agreeing with the plaintiff, the Third Circuit concluded that simply consulting the CBA did not amount to interpreting it, and therefore did not necessitate preemption. Notwithstanding this holding, the plaintiff failed to resurrect his disparate impact claim, with the Third Circuit holding the complaint lacked any enumeration of statistical disparities and contained only conclusory

Duane Morris Discrimination Class Action Review – 2024

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