A federal district judge in Hammond, Indiana, has permitted a rail union to pursue injunctive remedies in a Title VII pattern-or-practice discrimination claim on behalf of its black members without compliance with Rule 23. In Brotherhood of Maintenance of Way Employees v. Ind. Harbor Belt R.R. Co., (Case No. 2:13-cv-00018, 2014 WL 4987972,October 7, 2014), Chief Judge Philip P. Simon, in ruling on a motion for reconsideration, again rejected the argument that outside the class action context private plaintiffs cannot use the pattern-or-practice method of proof. The union sought to represent African-Americans who allegedly experienced systemic race discrimination and a racially hostile work environment. The allegations include the railroad’s preventing black employees from training for higher rated positions, applying a racially disparate discipline policy, failing to recall black employees after workforce reductions, allowing white employees to arrive late for work, and not advising employees of its anti-discrimination policy and to correct discriminatory actions. Originally filed as a class action, the union subsequently filed an amended complaint without class allegations.
While acknowledging that “an individual can’t pursue pattern-or-practice claims in the absence of class certification”, the Judge identified distinguishing characteristics when a union pursues those claims. “[T]here is something different about a union pursuing these types of claims versus a single private plaintiff or small group of plaintiffs . . . . Instead, the complaint paints a disturbing picture of systematic discrimination . . . . If true, this could amount to a pattern of system wide discrimination.” Thus, the Judge concluded that the union could pursue the pattern-or-practice claims under a theory of associational standing even absent Rule 23 certification.
In a prior ruling, Judge Simon denied in part the railroad’s motion to dismiss holding that when injunctive relief is sought, the proof regarding each individual plaintiff is unnecessary and that the union has associational standing against the railroad even if all union members don’t participate. Yet, the Judge had stated in this May 6, 2014, ruling on the railroad’s motion that “this area of the law is a bit murky, [but] that some participation by individual members in a lawsuit is permissible so long as not all of the members need to participate.”
In seeking reconsideration, the railroad argued that according to Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977) for associational standing the plaintiff must establish that it can prove its claim without significant participation by its members.
In his May 6th ruling, the Judge had recognized that “associational standing does fail where ‘the claim asserted [or] the relief requested requires the participation of individual members in the lawsuit.’” “But, [w]hat constitutes such individual participation has been the subject of some debate and confusion.” The instant case is likely to be a catalyst for further debate on the level of participation permitted and the impact of avoiding the strictures of Rule 23.
The court’s focus on whether the union satisfied associational standing requirements left unanswered questions about the feasibility of actually trying this case. Nowhere did the court examine how an assortment of claims consisting of hostile work environment and racially disparate treatment and seeking an injunction could be resolved in a single action without detailed individual testimony. And, in the case, the union inevitably would have to present testimony to establish an illegal hostile work environment and regarding whether an individual was treated differently than similarly situated employees because of his or her race.
The District Court allowed the union to bring a pattern-or-practice injunctive proceeding under Title VII without meeting the requirements of Rule 23. However, how much individual participation will be required or permitted remains unclear. What type of injunctive relief could the District Court issue based on diverse allegations of racially disparate treatment? Does the union have a conflict because it represents those that may either have benefited or lost as a result of the challenged policies? These are allegations requiring particularized proof and likely subject to numerous individual defenses.
Bottom Line: Despite numerous legal and practical obstacles, an Indiana District Court has permitted a union to bring a pattern-or-practice claim under Title VII on behalf of some of its members.