Duane Morris Discrimination Class Action Review – 2024

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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