A recent case from the Eastern District of New York reflects that race discrimination class actions can be brought, and also reflects the type of claim which will likely still survive in the wake of last week's Supreme Court decision in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___ (2011). (See our June 20 post on the Dukes decision). It also reflects some of the special issues that will continue to arise when employees of differing interests are included in a single class.

In United States v. City of New York.pdf Case No. 07-CV-2067 (June 6, 2011), the United States Justice Department challenged a test and related procedures used by the New York City Fire Department on the grounds that they had a disparate impact on minority applicants. During the course of the case, a black firefighters group known as the Vulcan Society successfully intervened and sought class certification, claiming a pattern and practice of race discrimination under Title VII and seeking to represent applicants who had been hired, but whose hire had allegedly been delayed as a result of the testing procedure. No, the Vulcan Society had nothing to do with Mr. Spock, but was a clever reference to the Roman god of things related to fire. In 2009, the District Court, following the grant of certification on the issue of liability only, found that the testing procedures did discriminate.

In a 48-page opinion issued on June 6, 2011, the court granted the Vulcan Society's motion to certify with respect to the remedial phase of the case, but with conditions. Interestingly, the City of New York did not appear to oppose certification per se, but did focus on the fact that the proposed class included both applicants and those who were hired. The City apparently agreed that the class was proper under Rule 23(b)(2) in that the primary goal was equitable or injunctive relief. The Dukes decision would likely have little effect on the accuracy of these positions because the resolution of one issue, the validity of the test, would resolve the entire case.

Because the primary issues were not in dispute, most of the opinion concerns the creation and management of subclasses. In a nutshell, the court concluded that while certification was appropriate in the remedial phase, the case would have to be managed through separate subclasses of applicants who were hired and those who were not. Because the Vulcan Society did not represent the non-hired applicants, and because its members had an inherent conflict of interest with those who were never hired, it also found that it could not be an appropriate representative as to the entire class. Interestingly, the court expressed concern whether the United States would adequately make determinations as to the unsuccessful applicants and appointed a Special Master to review their claims. These rulings likely flow from the court's earlier decision that the tests were discriminatory and discriminated against the entire class, and the analysis might have been different under Dukes if the plaintiffs had claimed discrimination arising from issues that were less wide-spread.

The Bottom Line: Testing cases may yet live long and prosper as class actions in the wake of Dukes. Conflicts among the class may make subclasses or other special procedures appropriate.