Q&A: Plaintiffs’ Counsel Muses on Employment Class Action Trends, Strategies

Attorney Andrew Melzer of Sanford Heisler LLP in New York discusses plaintiff-side tactics emerging in employment class action litigation, and explains why the plaintiffs’ class action bar is still confident in the class certification process when pursuing discrimination cases.

Bloomberg BNA: What can we expect to see in 2014 regarding trends and legal developments in employment discrimination class litigation?

Melzer: Class actions remain a powerful tool for rooting out systematic discrimination, and 2014 will be an exciting year to see how the class vehicle is redefined and developed.

We can expect a significant amount of activity in the lower courts this year. As always, certification and other case decisions will be fact-specific and driven by the evidence, but we anticipate cases will be certified.

Bloomberg BNA: Can you name one court case litigated by the Equal Employment Opportunity Commission that you are closely monitoring?

Melzer: Sterling Jewelers is a nationwide gender discrimination case with parallel proceedings in court and arbitration. It will be interesting to see how these different modes operate in tandem, with the EEOC moving alongside private enforcement actions.

At the same time, Sterling illustrates the ways in which private enforcement might prove more favorable for employees than the EEO process.

On Jan. 2, the Magistrate Judge in Sterling Jewelers  recommended dismissal of the EEOC’s pattern or practice claims in a decision we believe reflects an unduly restrictive view of the law and the evidence in that case.

We will be keeping an eye on the EEOC’s objections to the recommendation. Regardless of the outcome, plaintiffs may find success through the private enforcement action happening in arbitration.

Bloomberg BNA: What is the major strategy that you have seen the plaintiffs’ bar develop in response to the Supreme Court’s decisions in Wal-Mart v. Dukes and Comcast Corp. v. Behrend?

Melzer: Obviously, parties on both sides need to pay careful attention to the lessons of Wal-Mart. The plaintiffs’ bar has responded to the case by paying heed to the Supreme Court’s direction that even closer attention should be paid at the class certification stage to precisely what kind of claims and classes it is that the court is considering certifying.

We take additional steps from the outset of the case to narrow and clarify exactly who fits in a class or subclass and what kind of discrimination is taking place.

In addition, plaintiffs need to consider the whole range of ways in which certification [under the Federal Rules of Civil Procedure Rule 23] might be proper, including hybrid (b)(2) and (b)(3) certification; partial certification under (c)(4); and opt-in class actions under the Age Discrimination in Employment Act and the Equal Pay Act.

As to Comcast, a number of U.S. Circuit Courts of Appeals have made clear that its holding is limited. Plaintiffs need only “be able to show that their damages stemmed from the defendant’s actions that created the legal liability.”

We expect that trend to continue, including in the Applebee’s wage and hour case before the Second Circuit.

The reach of Comcast is especially narrow in employment discrimination cases, where the Supreme Court’s ruling in Teamsters  sets out a well-worn path on how to prove damages in class litigation. Indeed, the Supreme Court has reaffirmed the Teamsters case in its recent decisions.

These types of strategies have been successful on the employment front. The plaintiffs’ bar has repeatedly defeated Wal-Mart-based motions to dismiss. Cases such as  McReynolds in the Seventh Circuit and Ellis in the Northern District of California illustrate that the right cases are properly certified.

Bloomberg BNA: In light of the rulings in Dukes and Comcast, do you think the EEOC will take a more active role in bringing class-wide litigation on behalf of certain plaintiffs? As you know, the commission doesn’t need to meet the requirements of Rule 23(a) of the Federal Rules of Civil Procedure. But at the same time, the commission is facing limiting resources.

Melzer: We are hearing from more employees seeking representation than ever before and it would be wonderful if the EEOC were able to play an even greater role in holding corporations accountable for discrimination and retaliation.

But, the agency’s resources are understandably limited. Therefore, the private bar shoulders a large share of the load in addressing employment discrimination and will continue to do so going forward.  There are new challenges, but they are not insurmountable.

Bloomberg BNA: Any final thoughts on employment-related class action filings?

Melzer: Employment class actions continue to be an important and robust mechanism by which average Americans can protect their rights to a fair playing field in the workplace.

The class action mechanism is essential to the enforcement of our nation’s civil rights laws, and dedicated lawyers around the country will continue to seek out the best and most compelling ways to articulate the realities of what our clients confront.

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