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
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Duane Morris Discrimination Class Action Review – 2025
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