Seyfarth Synopsis: African American pipefitters filed a class action against their labor union based on its allegedly discriminatory system for referring jobs to union members. Despite the fact that third-party employers retained sole discretion in deciding whether to hire a union referral, the U.S. District Court for the Northern District of Illinois found that such discretion, and the individual hiring determinations resulting therefrom, did not destroy commonality for the claims of the class members. The Court based its conclusion on the notion that union’s job referral system was “the first allegedly discriminatory step that tainted the entire job assignment and hiring process.” The ruling is an important one for employers on discrimination liability for policies delegating decision-making authority to local managers or third parties.
In Porter et al. v. Pipefitters Ass’n Local Union 597, No. 12-CV-9844 (N.D. Ill. Sept. 20, 2016), a group of African American pipefitters filed a class action against their labor union, alleging racial discrimination in the union’s job referral system. Under the system, while third-party employers retained sole discretion in the ultimate decision to hire a union referral, union members were supposed to obtain employment based on race-neutral factors like length of time spent waiting for a job and having the requisite skills. However, Plaintiffs alleged that the union’s policies enabled employers to circumvent the system and hire union members directly, which resulted in white members disproportionately obtaining employment over African American members.
In granting Plaintiffs’ motion and certifying a class, Judge Sara Ellis of the U.S. District Court for the Northern District of Illinois rejected the union’s argument that individual issues relating to the hiring decisions of third-party employers precluded a finding of commonality. The union’s referral system, which enabled employers to circumvent race-neutral criteria for hiring, was “the first allegedly discriminatory step that tainted the entire job assignment and hiring process” and “allowed and endorsed” discrimination. Plaintiffs could prove the discriminatory nature of the policy across the class with statistical evidence.
The ruling is significant in that it limits the impact of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), wherein the U.S. Supreme Court found that an employer’s policy of giving discretion to local managers in employment decisions destroyed commonality among employees’ discrimination claims.
In Porter, Plaintiffs filed a class action lawsuit against their union based on its allegedly discriminatory system for referring jobs with third-party employers to Union members. Id. at 1. Plaintiffs alleged that the Union’s policies enabled employers to bypass the race-neutral referral system negotiated and hire Union members directly. According to Plaintiffs, this resulted in African American members receiving fewer work hours than their white counterparts. Id.
The Union’s job referral system had a history of discriminating against African Americans. In 1990, a jury found that rather than operate, as negotiated, a system by which members received jobs on a first-come, first-serve basis, the Union actually operated a word-of-mouth referral system disproportionately favoring whites. Id. at 2-3. Based on the jury’s finding, the Court issued a consent decree requiring the Union to assign jobs from an out-of-work list on a first-on, first-off basis. Id. at 3-4. However, employers retained sole discretion in deciding whether to hire referrals. Id. at 4. In addition, written exceptions to the system allowed employers to circumvent the out-of-work list and continue to hire Union members directly. Id. In 1996, the court terminated the consent decree. Id. at 5. Evidence showed that, by 2004, less than 20% of jobs were filled from the out-of-work list. Id.
In 2004-2005, the Union negotiated a new job referral system whereby members could either find employment directly with an employer or find employment through the out-of-work list. Id. While the Union implemented quotas to ensure appropriate levels of hiring from the out-of-work list, evidence showed those quotas were not met. Id. at 5-6.
Based on the above, Plaintiffs alleged discrimination in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981 as well as breach of the union’s duty of fair representation under the Labor Management Relations Act of 1947. Id. at 1. Plaintiffs moved to certify a class of current and former African American members of the Union who had faced and continued to face such violations. Id.
Judge Ellis certified a class of current and former African American members of the union pursuant to Rule 23(b)(3) to recover money damages. The Court withheld ruling on certification of a class under Rule 23(b)(2) for injunctive relief.
The Court’s Analysis Under Rule 23(a)
The Court’s analysis under Rule 23(a) focused on Plaintiffs’ showing of “commonality,” which required Plaintiffs to identify an issue central to all class members’ claims that the Court could decide “in one stroke” for the entire class. Id. at 12 (internal quotations and citations omitted). The Court explained that challenging the existence of a discriminatory policy may provide commonality, depending on the degree of discretion involved in the policy’s application. Id. at 12-13 Relying in particular on the U.S. Supreme Court opinion in Wal-Mart along with recent Seventh Circuit precedent, the Court opined that commonality is absent where the policy is “highly discretionary and plaintiffs do not identify a common way in which defendants exercise that discretion.” Id. at 13. However, if plaintiffs show that a defendant enforces the policy at the corporate level and the policy affects class members in a common manner, some discretion by employees or third parties in actually applying the policy will not necessarily defeat commonality. Id. at 13.
Based on those principles, the Court ruled that Plaintiffs had shown commonality based on the existence of the union’s job referral system, which “allowed,” “endorsed,” and “exacerbated” discrimination against African American pipefitters. Id. at 14-15. The Court rejected the union’s contention that the independent hiring decisions of third-party employers destroyed commonality. Indeed, such discretion did “not matter because Plaintiffs challenge [the union]’s overarching policies, which influenced the entire job assignment and hiring process.” Id. at 15 (citation omitted). Such policies were “the first allegedly discriminatory step that tainted the entire job assignment and hiring process.” Id.
In addition, the Court found that Plaintiffs had easily satisfied the remaining requirements of numerosity, typicality, and adequacy of representation under Rule 23(a). Id. at 11-12, 17-19.
The Court’s Analysis Under Rule 23(b)
Having found Plaintiffs satisfied Rule 23(a), the Court addressed whether Plaintiffs had satisfied Rule 23(b)(2) for certification of an injunctive relief class and Rule 23(b)(3) for monetary relief.
The Court explained that Rule 23(b)(2) allows certification of an injunctive relief class where the defendant “has acted or refused to act on grounds that apply generally to the class” such that the Court can appropriately fashion relief for the class as a whole. Id. at 20 (quoting Fed. R. Civ. P. 23(b)(2)). Injunctive relief is not appropriate if a court must make individual determinations to fashion relief for individual class members. Id. Plaintiffs’ proposed injunctive relief — a ban on the current job referral system and implementation of a new system — “appear[ed] proper.” Id. However, because Plaintiffs did not appear to be current members of the Union and, thus, would not suffer the Union’s policies going forward, they had no basis to request injunctive relief. Id. at 20-21. Accordingly, the Court reserved ruling on certification under 23(b)(2) to allow Plaintiffs to show that they were current Union members or to substitute someone who is a current member. Id. at 22.
The Court next addressed whether Plaintiffs satisfied the “predominance” and “superiority” requirements under Rule 23(b)(3). In particular, class certification is proper if “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.” Id. (quoting Fed. R. Civ. P. 23(b)(3)).
The Court determined that Plaintiffs can satisfy Rule 23(b)(3)’s predominance requirement by showing that “common questions [among class members] represent a significant aspect of a case” and can be proved by common evidence. Id. at 22-23. Plaintiffs argued that they could demonstrate the discriminatory impact of the job referral system on all class members by using statistical evidence adduced by its expert. Id. at 23. The union argued that predominance did not exist because: (a) Plaintiffs’ statistical evidence was “unrepresentative, inaccurate, [and would only] undermine” Plaintiffs’ claims; and (b) the union did not have a uniform policy because third-party employers made hiring decisions. Id. The Court agreed with Plaintiffs, finding that the Union’s arguments only underscored the predominance of common issues because, even if the Union was correct, the claims of the entire class would fail together. Id. at 24.
The Court also found that Plaintiffs had shown the “superiority” of a class action under the circumstances because it “would be more efficient than proceeding with hundreds of individual suits” challenging the same job referral system. Id. at 24. As such, the Court certified a class of current and former African American Union members to seek monetary relief under Rule 23(b)(3).
Implication For Employers
Jude Ellis’ decision is decidedly friendly for Plaintiffs. Based on the ruling in Porter, even after Wal-Mart Stores, Inc. v. Dukes, an employer may be held liable for the discretionary decisions of local managers or third parties if those decisions are discriminatory and the product of an employer’s policy which “allowed” or “exacerbated” the discrimination. Such a policy can provide the “glue” to hold together a class action where the independent decisions of local managers or third parties would otherwise destroy it. While the facts in Porter — namely, that a predecessor of the challenged policy had been found discriminatory by a jury — may limit its impact, employers would be wise to monitor policies giving lower level employees decision-making authority to ensure such policies are not allowing or contributing to a pattern of discrimination.