Since I have returned my practice to the Vladeck law firm, I have been reflecting on disability class action and impact work in employment context. Last month, I had the honor of presenting with a distinguished panel of lawyers discussing class actions in employment. I think class actions to address disability discrimination in employment can be done—carefully.
Injunctive Relief vs. Damages Classes
A critical distinction in federal class action work is whether the class is certified under Federal Rule of Civil Procedure 23(b)(3)—seeking monetary damages—or under Rule 23(b)(2)—for injunctive relief to fix the problem. Employment cases traditionally seek damages, but it has become increasingly difficult to certify a class action for employment discrimination damages, under recent Supreme Court rulings. Damages are often different for different people, and Rule 23(b)(3) requires that common questions “predominate” in a damages class action.
For example, the federal court in Washington, D.C. certified an injunctive relief class, but declined to certify a damages class, in Pappas v. D.C., No. CV 19-2800 (RC), 2024 WL 1111298 (D.D.C. Mar. 14, 2024). A group of police officers who were forced to retire sued the department. They challenged the “all or nothing” policy which forced disabled officers out unless they could resume full-duty status after 172 days over any 24-month period.
The law requires an employer to consider reassignment, job restructuring, or extended leave, if any of those would be reasonable for a given employee. So, categorically forcing people out without considering these accommodations is illegal.
But, Judge Contreras held in Pappas, individual police officers may or may not be able to work even in a different available job or after extended leave, and they all will have different damages. The court held that these differences made it untenable for the case to proceed as a class for damages. The court would have to make separate determinations for each class member, and these separate trials would overwhelm the common legal question, according to the court, applying the Supreme Court’s recent caselaw imposing tighter restrictions, which started with Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011).
Injunctive relief, the court explained, is different: An order requiring the city to go back and do it right—to consider accommodations individually—does not mean the court has to make individualized determinations. The court will resolve the central legal question in one stroke for every member of the class: Should the city have considered accommodating the officers on a case-by-case basis, rather than automatically kicking them out? See 2024 WL 1111298, at *16. So a class action to fix the problem was appropriate.
Teamsters Hearings
Some employment cases have allowed limited types of damages claims to proceed as a class action. For example, Judge Collyer, again in Washington D.C., certified a class of job applicants and employees who were screened out because of a criminal background check policy. Little v. Washington Metro. Area Transit Auth., 249 F. Supp. 3d 394 (D.D.C. 2017). The policy had a disparate impact on the basis of race. The court held that if that discrimination was established, “to the extent individual determinations are necessary … to present individual defenses or calculate individual damages, the court can conduct individual Teamsters hearings,” id. at 410, citing the Supreme Court’s decision, Int’l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977).
The “Qualified” Hurdle
Because the applicants and employees in Little were disqualified only because of their criminal convictions, and were not making disability accommodation claims, they did not have the added hurdle of proving they were qualified—eliminating an issue that is commonly characterized as individual and not class-wide in disability rights cases. See, e.g., Harris v. Union Pac. R.R. Co., 953 F.3d 1030 (8th Cir. 2020) (declining to certify injunctive relief class across different disabilities and jobs). Still, injunctive relief classes and Teamsters hearings offer potential tools to allow disability discrimination class actions in the employment context.
Despite the hurdles, class actions can be a powerful tool. Perhaps it is time that employment lawyers took another look at them for disability discrimination claims.
ADA Update 