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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© Duane Morris LLP 2024
Duane Morris Discrimination Class Action Review – 2024
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