Discrimination Class Action Review – 2025

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.

Duane Morris Discrimination Class Action Review – 2025

CITATION FORMATS All citations in the Duane Morris 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 Sambrano, et al. v. United Airlines, Inc., 347 F.R.D. 155 (N.D. Tex. 2024). If the decision is not available in the preferred format, a Lexis or Westlaw cite from the electronic database is provided, such as Paulino-Santos, et al. v. Metropolitan Transit Authority, 2024 U.S. Dist. LEXIS 58179 (S.D.N.Y. Mar. 28, 2024). If a ruling is not available in one of these sources, the full case name and docket information is included, such as Chalmers, et al. v. City Of New York, Case No. 20-CV-3389 (S.D.N.Y. Nov. 26, 2024). E-BOOK HIGHLIGHTS The Discrimination Class Action Review is available for use on a smartphone, laptop, tablet, or any personal electronic reader by using any e-book reader application. E-book 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 e-book is designed for easy navigation and quick access to informative data. The e-book is available by scanning the below QR code:

Duane Morris Discrimination Class Action Review – 2025

NOTE FROM THE EDITOR 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. Sincerely,

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Duane Morris Discrimination Class Action Review – 2025

CONTRIBUTORS

Duane Morris Discrimination Class Action Review – 2025

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 be 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. Collective Action – A type of representative proceeding governed by 29 U.S.C. § 216(b) where one or more plaintiffs seeks to bring suit on behalf of others who must affirmatively opt-in to join the litigation. It is applicable to claims under the Fair Labor Standards Act, the Age Discrimination in Employment Act, or the Equal Pay Act. 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-In Procedures – Under 29 U.S.C. § 216(b), a collective action member must opt-in to join the lawsuit before he or she may assert claims in the lawsuit or be bound by a judgment or settlement. 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

Duane Morris Discrimination Class Action Review – 2025

member to the complaint would be impractical. This is a requirement for class certification imposed by Rule 23(a)(1). 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. Similarly-Situated – Under 29 U.S.C. § 216, employees may bring suit on behalf of themselves and others who are similarly-situated. The standard is not clearly defined in the statute and many courts have found that, if plaintiffs make a preliminary showing that they are similarly-situated to those they seek to represent, conditional certification is appropriate. A finding in this regard is usually not based on the merits of the claims. 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 – 2025

TABLE OF CONTENTS

Page

I. Executive Summary ............................................. ..............................................1 II. Significant Rulings In Discrimination Class Actions In 2024 ......................... 2 1. Rulings On Class Certification Motions Based On Commonality .............. 2 2. Rulings On Class Certification Motions Based On Superiority.................. 6 3. Rulings On Class Certification Motions Based On Adequacy.................... 6 4. Rulings Granting Preemptive Motions To Dismiss ................................... 13 5. Rulings Denying Preemptive Motions To Dismiss .................................... 15 6. Rulings On Motions For Summary Judgment............................................ 17 7. Rulings On Decertification Motions ............................................................ 17 III. Top Discrimination Class Action Settlements In 2024 .................................. 18 Index Of 2024 Discrimination Class Action Rulings ................................................ 20

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Discrimination Class Actions I. Executive Summary Class action litigation in the discrimination space remains an area of prime focus of skilled class action litigators in the plaintiffs’ bar. Plaintiffs succeeded in certifying their cases at a slightly higher rate this past year. In 2024, courts granted class certification 53% of the time, and denied certification in 47% of the cases. In contrast, in 2023, court granted 50% of class certification motions, and denied 50%.

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 in Wal-Mart , the Supreme Court tightened the legal requirements for securing class certification. 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

Duane Morris Discrimination Class Action Review – 2025

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 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 that is 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 by discrimination, 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 defeated class certification motions in discrimination lawsuits in 2024 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. For example, in Raines, et al. v. U.S. Healthworks Medical Group , 2024 U.S. Dist. LEXIS 147942 (S.D. Cal. Aug. 16, 2024), the plaintiffs brought claims under California’s Fair Employment and Housing Act (FEHA), which permits employers to condition employment offers upon the applicant passing a pre-placement examination (PPE) if those examinations are both job related and consistent with business necessity. Here, plaintiffs sought to represent a class of job applicants who underwent a post-offer, pre-placement examination in which the defendant – an occupational health provider acting on behalf of businesses – required them to complete a health history questionnaire (HHQ), regardless of the actual position to which they applied, and despite the “intrusive, highly offensive, overbroad, and unrelated” medical information sought. Id. at *1. Of the two named plaintiffs, Plaintiff Raines answered 150 questions on the HHQ, save for one she considered completely unrelated to her job duties as a food service provider, resulting in her prospective employer revoking its employment offer for refusing to complete the questionnaire. Id. at *3. Plaintiff Figg, meanwhile, applied for a different and entirely voluntary position, but, like Raines, was required to complete the HHQ. Id. Believing he had no choice, Figg completed the questionnaire, despite his reservations. Id. Together, the plaintiffs challenged the defendant’s medical examination practice as (i) violating the FEHA; (ii) violating the Unruh Civil Rights Act; (iii) intruding on the plaintiffs’ right to seclusion; and (iv) violating California’s Unfair Competition Law. The plaintiffs subsequently sought to certify a class consisting of 370,000 job applicants for both paid and unpaid positions who underwent a PPE and were subjected to the standardized HHQ at one of the defendant’s approximately 78 facilities in California between October 23, 2017, and December 31, 2018. Id. at *4. employers can expect discrimination class actions to reach even greater heights in 2025. II. Significant Rulings In Discrimination Class Actions In 2024 1. Rulings On Class Certification Motions Based On Commonality

Duane Morris Discrimination Class Action Review – 2025

In granting the motion for certification, the court held that Plaintiff Raines met all the prerequisites under Rule 23(a), but that Plaintiff Figg failed to satisfy the typicality requirement because he was not an applicant for a paid position and therefore did not attain employee status under the FEHA. Id. at *8. In its subsequent evaluation of the proposed class under Rule 23(b)(3), the court concluded that the common issues predominated across the class, determining that: (i) the defendant administered the PPEs on behalf of and at the direction of employers; (ii) all class members received the same HHQ from the defendant regardless of the duties or functions of the job conditionality offered; and (iii) at least one question on the HHQ was not relevant to any job. Id. at *14-15. Given such evidence, the court concluded that predominating issues of whether the defendant acted on behalf of referring employers and engaged in FEHA-related activities by administering a medical questionnaire could be adjudicated on a class-wide basis. Id. at *15. The court denied the plaintiff’s motion for class certification in Pearson, et al. v. Tyson Foods , Case No. 23-CV- 1080 (E.D. Ark. Oct. 29, 2024). The plaintiff filed a class action alleging that the defendant violated Title VII of the Civil Rights Act by not providing her with her requested religious accommodation following remote work during the COVID-19 pandemic. The plaintiff filed a motion for class certification pursuant to Rule 23, and the court denied the motion. The defendant initially permitted the plaintiff to work remotely from home during the pandemic. In August of 2021, the defendant announced a policy requiring all workers to receive the COVID-19 vaccination, unless the employee requested an exemption due to a sincerely held religious belief. The defendant’s policy provided accommodations for these employees including authorizing remote work, job transfers, or by providing unpaid leave under its LOA+ program. Id. at 1. The plaintiff applied for a religious exemption, and the defendant granted the request. After considering the plaintiff’s job duties, it offered to place her on unpaid leave, and the plaintiff accepted the offer. The plaintiff’s employment subsequently ended in December of 2022. The plaintiff sought certification of a class or current and former employees who worked remotely before the defendant implemented the vaccination requirement, requested a religious accommodation to continue working remotely, and who were placed on an extended leave of absence. Id. at 2. The court found that the plaintiff’s class failed to meet the commonality and numerosity requirements of Rule 23(a) and the predominance requirement of Rule 23(b). The court found that questions regarding whether the defendant’s accommodation was reasonable and whether it was unduly burdensome to the defendant for the employee to work remotely would be highly fact intensive and would depend on the responsibilities of each individual employee. The court also stated that the plaintiff failed to establish the number of employees in her proposed class with any proof. The court concluded that common questions did not predominate as all the common questions proposed would require individual analysis to resolve. The court thereby denied the plaintiff’s motion for class certification. On the other hand, the numerosity requirement can be challenging for plaintiffs to meet. In Burns, et al. v. SeaWorld Parks & Entertainment, Inc., 2024 U.S. Dist. LEXIS 68283 (E.D. Penn. Apr. 15, 2024), a group of Black and Hispanic families who visited Sesame Place Philadelphia, alleged that the park subjected them to discrimination on the basis of their race. The plaintiffs claimed that park employees, particularly those portraying Sesame Street characters, ignored their children but freely interacted with white children. The families also asserted that they were denied access to rides despite meeting applicable requirements and they were delayed in obtaining service in restaurants as compared to white families. The plaintiffs sought to certify a class action seeking declaratory and injunctive relief to prevent future discrimination against park attendees. Specifically, the plaintiffs sought injunctive relief measures, including revising anti-discrimination policies, implementing anti- discrimination training for employees, and appointing an Injunctive Relief Manager to oversee compliance with these measures. The court denied the motion. The court noted that the plaintiffs’ claims were based on alleged incidents of discrimination involving interactions with Sesame Street characters, as well as broader systemic issues regarding employee hiring and training. However, despite evidence of racial bias in the surrounding community and complaints received by the park, the court found that the proposed class definition lacked specificity and failed to adequately address the scope of the alleged discrimination. The court opined that although the families met some requirements for class certification, they failed to satisfy the numerosity requirement and that individualized issues made class-wide resolution impractical. Additionally, the court refused to certify a single issue regarding the park’s handling of racial biases, stating it would not resolve the essential questions of a negligence claim. Accordingly, the court denied the plaintiffs’ motion for class certification. Employers commonly challenge the numerosity or commonality requirements by attacking affidavits propagated

Duane Morris Discrimination Class Action Review – 2025

by plaintiffs to support certification. In Jirek, et al., v. AstraZeneca Pharmaceuticals LP, 2024 U.S. Dist. LEXIS 87136 (N.D. Ill. May 14, 2024), the plaintiffs brought suit against their former employer, AstraZeneca, a global biopharmaceutical company, alleging violations of the Equal Pay Act of 1963 (EPA) for paying female employees less than their male counterparts for the same or substantially similar work in sales positions within the same pay scale levels. The plaintiffs’ evidence in support of this sex-based wage discrimination claim included 10 online job postings from different locations, a declaration from each of the named-plaintiffs, AstraZeneca’s “Career Ladder Program Guide” (an internal evaluation guide from July 2010, which, according the AstraZeneca’s declarant, had not been used since 2015), and two unequal pay violations issued by the U.S. Department of Labor’s Office of Federal Contract Compliance Program’s (“OFCCP”) following the OFCCP’s evaluation and analysis of AstraZeneca’s payment structure. According to the conditional certification motion, the OFCCP found that, beginning in September 2016, AstraZeneca failed to comply with Executive Order 11246, which prohibits companies that do over $10,000 in U.S. government business from discriminating against employees on the basis of gender. Id. Specifically, the OFCCP found that AstraZeneca discriminated against female employees in “Specialty Care Sales Representative Level 4 positions” in violation of the Executive Order, after comparing random samplings of men and women and finding that there was a difference in $2,182.07 between the sexes in sales representative positions. As a result of the OFCCP Conciliation Agreement, all the women in the OFCCP’s sampling were entitled to back pay plus interest. The complaint alleged that despite this, the defendant did not change its discriminatory pay practices until at least 2021. The plaintiffs filed a motion for conditional certification of a collective action, and the court granted the motion and permitted the plaintiffs to send notice to “females employed by AstraZeneca in sales positions as of December 30, 2018.” Id. at *28. Of the evidence submitted by the plaintiffs’ counsel, the court noted that it found the similarity in language amongst job postings to be a compelling reason to support the plaintiffs’ assertion that the sales representatives were similarly-situated, regardless of location. Although the court noted that the defendant’s declaration from AstraZeneca’s Vice President of Human Resources attempted to “diffuse” some of the similarities, the court reasoned that these factual questions were inappropriate for resolution at the conditional certification stage. Id. The court also declined to engage in other “credibility determinations” that AstraZeneca presented to respond to the evidence the plaintiffs submitted. The court further observed that the “OFCCP Agreement [gave] the plaintiffs the hook they need[ed] to tie the nationwide body of sales representatives to alleged widespread gender-based pay discrimination.” Id. at *14. The court concluded its analysis of the plaintiffs’ conditional certification motion by noting the weakness of the plaintiffs’ declarations, stating, “[f]rankly, the plaintiffs’ declarations do not say much, primarily regurgitating allegations contained in their already thin amended complaint. But another word for ‘allegations lifted from a complaint and a repeated verbatim in a declaration’ is ‘evidence’ and arguably weak evidence is still evidence that the court – again – may not weigh at this stage.” Id. at *16. In the same order, the court directed the parties to continue engaging in negotiations regarding the proposed form of notice, and tolled the statute of limitations for the time period that elapsed between the court’s decision and the court’s approval of the notice form. Meanwhile, in Chavez, et al. v. San Francisco Bay Area Rapid Transit District , 2024 U.S. Dist. LEXIS 14785 (N.D. Cal. Jan. 28, 2024), a proposed class of former employees filed suit against their former employer Bay Area Rapid Transit (BART) alleging that BART failed to accommodate their religious beliefs in connection with receiving the COVID-19 vaccination in violation of Title VII of the Civil Rights Act, the First Amendment free exercise of religion, and the California Fair Employment and Housing Act. Of the 148 applications for religious exemptions that BART received, 73 employees were ultimately terminated for failure to comply with the vaccine mandate after their requests were either denied or BART concluded that no accommodation was available without creating an undue hardship on the company. The court ultimately determined that common issues did not predominate because the individualized nature of religious beliefs, the employer’s undue hardship considerations, and the diverse job roles of the class members made it impractical to resolve these issues on a class-wide basis. Additionally, the court ruled that a class action would not be the superior method of adjudication given the significant interests of class members in controlling their own claims and the likely difficulties in managing such a diverse class action. Therefore, the court denied the plaintiffs’ motion for class certification. Likewise, in Mahone, et al. v. Amazon.com, Inc., 2024 U.S. Dist. LEXIS 133604 (W.D. Wash. July 29, 2024), the plaintiffs faced a significant challenge in proving that their claims shared sufficient common ground, ultimately leading to the denial of class certification. The plaintiffs filed a class action alleging that the defendant violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) by denying reemployment and

Duane Morris Discrimination Class Action Review – 2025

ultimately terminating their employment due to their military service. Plaintiff Mahone asserted that her termination and subsequent denial of reemployment were wrongful under the USERRA, while plaintiff Tole asserted he was denied promotion and raises after returning from military leave. The plaintiffs claimed that the defendant had a company-wide policy requiring prior written notice for military leave, which violated the USERRA. The plaintiffs filed a motion for class certification pursuant to Rule 23, which the court denied. Plaintiff Mahone was a private in the Alabama Army National Guard, and regularly took military leave. She notified the defendant of her military service obligations via a mobile application. In October 2020, Mahone informed the defendant about an upcoming military drill and was granted leave. However, on October 18, 2020, Mahone asserted that she was terminated from her employment when she had a negative unpaid time-off balance, despite her leave being approved. Following her termination, a case manager contacted her to question whether her military leave had been reported correctly, after which Mahone allegedly provided documentation of her military obligations. Ultimately, the defendant denied Mahone’s request for reinstatement request for an alleged failure to provide timely documentation. After filing suit, the defendant acknowledged that Mahone had been mistakenly terminated due to administrative errors and offered her reinstatement and back pay with no offset in earnings from the plaintiff’s new employment. Plaintiff Tole, an officer in the U.S. Marine Corps Forces Reserve, took military leave from May 2019 to late 2021, and provided the defendant with written notice. Despite positive performance reviews, Tole asserted he was removed from promotion consideration after announcing his military leave, assigned a lower position when he returned from leave, and that the defendant informed him that none of his pre-leave performance would count towards his promotion. The plaintiffs requested certification of one class and two sub-classes, consisting of all current and former employees of the defendant who served in the U.S. Armed Services or National Guard. The proposed classifications included a Military Employee Class, an Hourly Military Employee Sub-class, and a Salaried Military Employee Sub-class. The court found that regardless of the data, there were over 14,000 members in the proposed classes, thereby meeting the numerosity element of Rule 23. However, the court denied the motion for class certification because the plaintiffs failed to meet the commonality or predominance requirement. In response to the plaintiffs’ allegations that the defendant’s policies improperly required hourly employees to submit documentation to obtain military leave, leading to wrongful terminations, the court found no evidence to support the allegations, and that in reality, the defendant did not require the alleged documentation. The court also explained that the defendant’s policies complied with the USERRA requirements, and no consistent evidence showed that employees were treated differently based on their military leave. The court ruled that individualized questions, such as specific compensation and promotion considerations, would predominate over any class-wide inquiries, thereby preventing the predominance of common issues. The court concluded that a class action would not be the superior method of adjudication because of the significant individual claims and unique defenses. Accordingly, the court denied the plaintiffs’ motion for class certification. Conversely, the plaintiffs in Sambrano, et al. v. United Airlines, Inc. , 347 F.R.D. 155 (N.D. Tex. 2024), were awarded class certification after the court modified their originally requested class definitions. The plaintiffs filed suit against their employer alleging employment discrimination and retaliation. In August 2021, the defendant announced that all United States-based employees must be vaccinated against COVID-19, unless they received a religious or medical accommodation. Some unvaccinated employees were placed on unpaid leave, with the option to apply for alternative positions. Other unvaccinated employees were required to wear face masks and regularly submit COVID-19 test results. In their motion for class certification, the plaintiffs asked the court to certify one class comprised of all employees who requested an accommodation to the vaccine policy, and two sub-classes comprised of all employees put on unpaid leave and all employees who had to wear masks and submit regular test results. The court granted certification for a modified proposed sub-class of customer-facing employees who received an accommodation due to sincerely held religious beliefs and were put on unpaid leave. However, the court denied certification for two other classes due to lack of commonality. The plaintiffs argued that, irrespective of the fact that class members faced different alleged adverse actions, commonality was met because the harm faced by the employees derived from the same underlying policy. The court rejected this argument. It explained that commonality is met when “an issue that is central to the validity of each one of the class members’ claims can be resolved in one stroke ,” Id. at 168. Regarding the masking and testing sub- class, the court determined that masking and testing itself is not an adverse action, and further, that the putative sub-class members alleged that they suffered different harms. However, the court granted certification for the unpaid leave sub-class, holding that the employees within this sub-class suffered the same injury as a result of sincerely held religious beliefs. The court determined that the unpaid leave sub-class’s ADA claims alleging

Duane Morris Discrimination Class Action Review – 2025

disability discrimination lacked commonality because the existence of a qualifying disability is an individual inquiry. Thus, the court granted the motion for class certification only for the unpaid leave sub-class for its Title VII claims. Finally, in Miall, et al. v. City Of Asheville , 2024 U.S. Dist. LEXIS 7940 (W.D.N.C. Jan. 15, 2024), the plaintiffs filed a class action and sought a declaratory judgment that the defendants employed illegal discriminatory policies in creating and administering a city advisory board. The plaintiffs, a group of white residents of the City of Asheville who were denied selection for the position, claimed that the race-based appointment preferences utilized by the defendants disadvantaged applicants who were not racial minorities, in violation of Title VI of the Civil Rights Act and the Equal Protection Clause of the Fourteenth Amendment. After being denied a temporary restraining order and preliminary injunction, the plaintiffs filed a motion for class certification of a class consisting of “past, present, future, and deterred nonminority Asheville or Buncombe County applicants to the Human Relations Commission of Asheville (HRCA) that - but for their race - are qualified to apply and compete for an appointment to the HRCA on equal footing.” Id. at *8. In denying class certification, the court found that the plaintiffs failed to demonstrate that their proposed class was readily identifiable, a threshold matter in any proposed class action. Specifically, while the plaintiffs sought to represent a group of 46 white applicants who were denied selection, they failed to indicate whether these applicants were rejected solely on the basis of their race, as opposed to other criteria like experience or interest. Moreover, at least a handful of the proposed class members were rejected prior to a policy amendment passed by the City, and therefore lacked standing to challenge the City’s actions. Finally, while the court observed that potential applicants who might have but failed to apply for the position could have constituted part of the class, the plaintiffs did not produce any evidence that such a class existed. Taking all of this into account, the court opined that the proposed class fell well below the 40-person threshold typically relied upon to establish numerosity under Rule 23. As a result, the court determined that there were ample grounds to deny the motion for class certification. 2. Rulings On Class Certification Motions Based On Superiority Rule 23(b)(3) issues involving superiority were also spotlighted in 2024. As discussed in the prior section, the court in Chavez, et al. v. San Francisco Bay Area Rapid Transit District, 2024 U.S. Dist. LEXIS 14785 (N.D. Cal. Jan. 28, 2024), partially justified its denial of class certification on the grounds that the superiority prong of Rule 23 had not been met. Specifically, given the diverging nature of each employees’ religious beliefs, as well as the undue hardship the defendant faced to accommodate these beliefs, a class action would not be the superior method for adjudicating these claims. This was in part due to the complexity of the individual issues raised, and the significant personal and financial stakes for the plaintiffs. Accordingly, the court denied the motion for class certification. Similarly, the court in Burns, et al. v. SeaWorld Parks & Entertainment, Inc. , 2024 U.S. Dist. LEXIS 68283 (E.D. Penn. Apr. 15, 2024), ruled that plaintiffs did not carry their burden of proving numerosity, and therefore, considering joinder was not impracticable, they could not prove a class action was the superior method of litigating the claims. The plaintiffs merely speculated that approximately 100 class members existed, and the court found that the plaintiffs cannot satisfy the numerosity requirement by say-so alone. Due to the lack of evidentiary support, the court determined that class certification was not appropriate. 3. Rulings On Class Certification Motions Based On Adequacy Of Representation While less common than the other Rule 23 factors, adequacy of representation can also present a barrier to plaintiffs looking to certify a class action. In Anders, et al. v. California State University, Fresno , 2024 U.S. App. LEXIS 1063 (9th Cir. Jan. 17, 2024), the plaintiffs, a group of former women’s lacrosse team members, filed a class action alleging that the defendant violated Title IX by depriving current and former female athletes at California State University, Fresno of effective accommodations and equal treatment. The district court denied the plaintiffs’ motion for class certification, and their motion for reconsideration of the ruling, finding that the named plaintiffs were not adequate representatives as required under Rule 23(a)(4) because their affiliation and positions favored the women’s lacrosse team over other women’s varsity sports teams. On appeal, the Ninth Circuit reversed and

Duane Morris Discrimination Class Action Review – 2025

remanded the district court’s ruling. It held that the district court abused its discretion in concluding that a conflict of interest existed. Id. at *4. The Ninth Circuit determined that the district court clearly erred in finding that the remedy sought under the plaintiffs’ effective accommodation claim required the defendant to reinstate at least one women’s sports team and that the named plaintiffs would naturally advocate for reinstatement of the women’s lacrosse team at the expense of other female programs. Id. at *5. Rather, the plaintiffs only sought an injunction requiring the defendant to comply with Title IX, which could just as well be achieved by “leveling down programs instead of ratcheting them up.” Id. In other words, the Ninth Circuit reasoned that the district court improperly concluded that compliance dictated reinstatement of a female sports program, which the district court believed would provide women’s lacrosse an unfair advantage. Even if reinstatement were necessary, the district court pointed to no evidence suggesting the named plaintiffs would have input into the selection process. Id. Because the district court ignored the equal treatment claim entirely, the Ninth Circuit vacated the district court’s denial of class certification and remanded to the district court for further proceedings. 4. Rulings Granting Preemptive Motions To Dismiss Or Strike Class Claims 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. A win for defendants was in Sanchez, et al. v. El-Milagro, Inc., 2024 U.S. Dist. LEXIS 205115 (N.D. Ill. Nov. 12, 2024). There, the plaintiff a manufacturing worker, filed a class action alleging that the defendant subjected her and other female employees to sexual harassment in violation of Title VII of the Civil Rights Act and the Illinois Human Rights Act. Following discovery, the defendant filed a motion for summary judgment and a motion to deny class certification. The court granted the motion for summary judgment and the motion to deny class certification. The plaintiff began working for the defendant in July 2019 in the production department of the tortilla manufacturing company. The defendant contended that during her orientation, the plaintiff participated in sexual harassment prevention training and the defendant also conducted annual sexual harassment training for all employees, with employee sessions lasting two hours and supervisor and manager sessions lasting three hours. Id. at *3. Over the course of her employment, the plaintiff contended that there were multiple incidents of sexual harassment by a co-worker, Francisco Gutierrez, beginning in 2019. These incidents included physical contact and inappropriate comments. The plaintiff claimed that Gutierrez rubbed his genitals against her in May 2020, touched her buttocks in June or July 2020, and again grabbed her buttocks in August 2020. Id. at *5. She reported these incidents to her supervisor, Arturo Brito. Following an investigation by the defendant’s HR Department, the defendant determined that there was insufficient evidence of sexual harassment, although Gutierrez was warned about his conduct. The plaintiff later claimed that she continued to be subjected to verbal sexual harassment, including taunting and inappropriate comments by other employees. The defendant filed a motion for summary judgment, arguing that that the conduct described by the plaintiff did not equate to a hostile work environment, as the incidents were not severe, pervasive, or objectively unreasonable. The court agreed with the defendant. It opined that while the plaintiff claimed to have been subjected to some harassment, these incidents did not rise to severe or pervasive conduct. The court noted that for conduct to qualify as a hostile work environment, it must be both objectively offensive (as a reasonable person would find it) and subjectively offensive (as the plaintiff herself perceived it). The court stated that the three times that Gutierrez allegedly had contact with the plaintiff occurred over the span of around four months, and while the plaintiff was offended by his behavior, the record did not support a finding that these incidents affected her work performance at all, as the plaintiff worked in the same location, in the same department, on the same shift. Id. at *20-21. The court concluded that the alleged incidents were isolated, brief, and therefore did not create a hostile work environment. Accordingly, the court granted the defendant’s motion for summary judgment. The court concluded that since it granted the defendant’s motion for summary judgment, it would also grant the motion to deny class certification because the plaintiff could establish the requisite showings required by Rule 23. The defendant was again victorious in Smith, et al. v. McDermott Inc., Case No. 19-CV-613 (M.D. La. Nov. 18, 2024). The plaintiff filed a class action alleging that the defendant disproportionately terminated Black employees and rehired White employees on the basis of their race in violation of Title VII of the Civil Rights Act.

Duane Morris Discrimination Class Action Review – 2025

The defendant filed a motion to dismiss, and the court granted the motion. The plaintiff asserted that the defendant terminated his employment, along with approximately 100 other employees, as part of a work shortage reduction-in-force. The plaintiff asserted that the terminations were discriminatory and that a majority of the terminated employees were Black. Further, the plaintiff contended that when the defendant began rehiring terminated employees, White employees were rehired more often than Black employees. The court ruled that the plaintiff failed to identify a specifically, facially neutral policy that the defendant employed which was responsible for the alleged workforce reduction disparities. The court stated that to establish a disparate impact claim, a plaintiff must identify a specific policy or practice responsible for the layoff, which the plaintiff failed to do. The court opined that simply alleging that the defendant had a layoff and rehired some of the laid off employees was insufficient to support a disparate impact claim. Accordingly, the court granted the defendant’s motion to dismiss. Such was the case in AnoJones, et al. v. Local 798 Of The United Association Of Journeymen & Apprentices Of The Plumbing & Pipefitting Industries Of The U.S. & Canada, 2024 U.S. Dist. LEXIS 53447 (N.D. Okla. Mar. 26, 2024). The plaintiff, in Jones I filed an action alleging violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act for failure to enforce the National Pipeline Agreement collective bargaining agreement (CBA), which the court previously dismissed without prejudice for failure to exhaust his administrative remedies before the EEOC. In Jones II , the court held that the plaintiff failed to state a claim for failure to enforce the National Pipeline Agreement under § 1981 because his allegations failed to plead facts that could lead to the inference of intentional prevention by the Union. The court also dismissed the plaintiffs’ claim that Local 798 failed to enforce the terms of the agreement due to racial discrimination, and dismissed the disparate treatment claim under Title VII for failure to plead intent. In the plaintiff’s Third Amended Complaint (TAC), he filed a class action suit against the defendant and added additional plaintiffs. The TAC alleged previous claims under § 1981 and Title VII, as well as introducing new claims for race discrimination under § 1981. The defendant again moved to dismiss the claims, and the court granted the motion. The court ruled that although the TAC alleged several disturbing instances which recounted racist behavior of other union members, even accepting those allegations as true, they were insufficient to allege an intent by the Union to create a hostile working environment. Id. at *43. The court opined that the allegations established that individual union members exhibited racist conduct, but that the allegations were insufficient to support a claim against the Union. The court also determined that the plaintiff failed to allege sufficient facts from which a jury could plausibly infer that the Union failed to enforce his rights because the Union was motivated by discriminatory animus. The court concluded that the allegations identified discriminatory acts by individuals other than Local 798 of which the Union was aware, but it did not allege facts from which an inference could be drawn that the Union intended to discriminate against the plaintiff or other Union members. Id. at *46-47. Accordingly, the court granted the defendant’s motion to dismiss. Similarly, in Dancer, et al. v. United States, 2024 U.S. Dist. LEXIS 45881 (W.D. Mich. Mar. 15, 2024), the plaintiffs, a group of Black individual residents of the Northside Neighborhood of Kalamazoo, Michigan filed a class action on their own behalf or on the behalf of other deceased individuals alleging that the defendants, the United States, the local government unit, the Environmental Protection Agency (EPA), and local companies failed to protect them from airport pollution and chemical discharge from a nearby paper mill and water- processing plant. The plaintiffs alleged that other neighboring areas of the city were protected from the pollutants because the neighborhoods were comprised of primarily white residents. The defendants moved to dismiss the claims, and the court granted the motion. The court determined first that the federal government and the EPA were entitled to sovereign immunity. The plaintiffs had argued that President Joe Biden’s order titled “Revitalizing Our Nation’s Commitment to Environmental Justice for All” exempted the government and the EPA from sovereign immunity. The court rejected the argument on the basis that the plaintiffs failed to establish any evidence from the Executive Order that indicated that the government was waiving its right to sovereign immunity. The court also found that the plaintiffs’ assertion that the state protected other white communities in Michigan by shutting down hazardous facilities but failed to protect Black residents in the same manner was without merit as they did not establish that Michigan, the city, or the mayor of the city played any role in shutting down the Michigan facility, or that any different treatment was due to race discrimination. The court also granted the defendants’ motion with respect to the plaintiffs’ claims under the Comprehensive Environmental Response, Compensation and Liability Act, and the Toxic Substances Control Act. Accordingly, the court granted the defendants’ motion to dismiss. Another successful motion to dismiss transpired in Webb, et al. v. Walmart Inc., 2024 U.S. Dist. LEXIS 47226

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