Duane Morris Discrimination Class Action Review – 2024

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

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