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LABOR & EMPLOYMENT LAW — 3/07/08

Private pattern and practice claim must be brought as class action

Since they failed to seek class certification, nine black employees could not prosecute their pattern and practice claim against their employer for its racially biased supervisor hiring practice, ruled the Eleventh Circuit Court of Appeals. "[P]rivate pattern or practice claims for such relief must be litigated either as class actions or not at all," wrote the court (Davis v Coca-Cola Bottling Co Consol, 11thCir, February 6, 2008).

Without class certification, the employees had no standing to seek injunctive relief on their own behalf since they failed to allege a likelihood they would be denied supervisor jobs in the future. Nor could they seek relief for unnamed class members for prudential reasons. At the filing of a class action complaint, the limitations statute is tolled until class certification is rejected or the case concludes. Potential class members need to know if they are to be certified class members or proceed with their own action, and whether they must file their own EEOC charge. And, res judicata and collateral estoppel issues would arise if an individual could prosecute a pattern and practice claim without formally representing those similarly situated. If a class was certified and the employer prevailed, res judicata would bar unnamed class members from bringing pattern or practice claims in a separate proceeding, although they might retain individual claims. But if a class is not certified and the individual employee prevails, whether the unnamed class members would be barred by issue preclusion from proceeding against the employer would be "problematical," the court said.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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