As many of the postings in this blog reflect, there has been a veritable flood of class and collective actions asserting wage and hour violations. But even apart from Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir.), cert. granted, 131 S.Ct. 795 (2010), now pending before the United States Supreme Court, discrimination cases still are being brought and may, under the proper circumstances, be certified.

In Brown v. Nucor.pdf. Case No. 2:04-CV-22005-CWH (D.S.C. Feb. 17, 2011), the plaintiffs brought suit against the employer under Title VII and 42 U.S.C. Section 1981, asserting hostile environment race discrimination claims on a class-wide basis. They supported their claims with anecdotal evidence regarding numerous racist comments and monkey noises being broadcast over the company’s radio system, as well as other discriminatory acts. They also presented statistical evidence regarding lost promotional opportunities. Incidentally, the plaintiffs were represented by the Alabama firm of Wiggins, Childs, Quinn, and Pantazis, among others, a firm that has scored a number of notable victories in both the discrimination and wage and hour arenas.

The suit was originally filed in 2004. In 2007, following numerous procedural turns, the district court denied class certification, but that determination was overturned by the Fourth Circuit in 2009. See Brown v. Nucor Corp., 576 F.3d 149 (4th Cir. 2009), In a 2:1 opinion, that court found that the denial of certification was an abuse of discretion. This was itself an unusual holding, but the Fourth Circuit’s decision focused entirely on Rule 23(a) did not state which of the required Rule 23(b) provisions would apply. In fact, after the court amended its opinion, it did not even mention Rule 23(b) at all..

On remand, predictably, the focus of the argument was on the meaning of the Fourth Circuit’s ruling. The plaintiffs argued that the Fourth Circuit, by omitting any Rule 23(b) discussion, essentially directed that the class be certified under Rule 23(b)(2), for equitable relief. Plaintiffs tend to prefer Rule 23(b)(2) classes because of their relative ease of administration and the absence of any opt-out rights by class members. The defendant argued that the court of appeals had left open the possibility of denying certification if the district court found that no provision of Rule 23(b) applied.

The district court disagreed with both parties, but still handed the plaintiffs a victory. It found that while the Fourth Circuit had not prescribed a provision of Rule 23(b), its order was clear that some class should be certified. It found, however, no basis to apply Rule 23(b)(2), however, because the plaintiffs’ claims for back pay and punitive damages caused monetary relief to predominate. It also refused to certify a “hybrid” 23(b)(2)/23(b)(3) class. It noted that there was a three-way split among the circuits and that the issue was currently before the Supreme Court in Dukes. As to the availability of a hybrid claim, it sided with the Fifth Circuit in Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998), and held that none was available. Finding that class issues predominated, it therefore certified the class under Rule 23(b)(3).

Nucor has promised another appeal. If and when a district court ever reaches the merits, the parties will have to litigate claims that may be seven to ten years old, and will likely test the limits of the witnesses’ memories.

The Bottom Line: Wage and hour claims may now comprise the lion’s share of class action litigation, but don’t discount the possibility of race or sex discrimination class actions, which can themselves be extremely dangerous for the employer. Litigation of this type can and often does drag on for many years.