A recent opinion from the U.S. Court of Appeals for the Eighth Circuit highlights the rigorous analysis required by Rule 23(b) of the Federal Rules of Civil Procedure before a district court may certify a class action. In Harris v. Union Pacific Railroad Company, 953 F.3d 1030 (2020), several former employees sued Union Pacific Railroad Company, claiming that Union Pacific violated the Americans withe Disabilities Act through its use of a fitness-for-duty policy that included evaluation for risk of sudden incapacitation.
Union Pacific's fitness for duty policy defined fitness for duty as the ability to safely perform a job, with or without reasonable accommodations, and meet medical standards established by relevant regulatory agencies. As part of the policy, employees were required to report certain events such as cardiac arrest, stroke, seizure, significant visions change, and eye surgery. If Union Pacific received a report of one of these conditions, it would assess whether the employee presented an "unacceptably high risk of sudden incapacitation." Based on the assessment, Union Pacific could impose work restrictions on an employee and would work with the employee's supervisor to determine whether the employee could perform the job with or without an accommodation despite the restrictions. The employees alleged that Union Pacific's policy "has led to a systematic removal of workers with disabilities" and sought certification of a class.
The district court certified a hybrid class under Rule 23(b)(2) and 23(b)(3). It defined the class to include all employees who have been or will be subject to a fitness-for-duty evaluation because of a reportable health event. Union Pacific then sought review in the court of appeals.
The Eighth Circuit determined that certification of the class under the circumstances constituted an abuse of discretion. The court held that the individual questions at issue in determining whether any discrimination had occurred predominated over any common questions and that the class was insufficiently cohesive to warrant certification.
The plaintiffs argued that class certification was appropriate because they challenged the lawfulness of the policy itself rather than the way the policy was applied. The court rejected this argument, holding that "the district court cannot determine whether the 'policy itself' constituted a pattern or practice of unlawful discrimination without considering whether the policy is job-related for each of over 650 positions in question and whether the policy is consistent with business necessity in each situation." According to the court, "determining whether the policy is job related and consistent with business necessity requires answering many individual questions." This was particularly true given the varying disabilities and job positions alleged by the plaintiffs.
The court held that these questions were "inherently an individualized question, defeating both predominance and cohesiveness." The court also held that the district court had failed to conduct the "rigorous analysis" necessary under Rule 23(b)(3)'s predominance requirement. Though the plaintiff's identified common questions, the individualized determinations that the district court would be required to make predominated. Similarly, the court noted that Rule 23(b)(2)'s cohesiveness requirement is not met if the defendant's conduct cannot be evaluated without reference to the individual circumstances of each plaintiff.
In a footnote, the court also expressed doubts that the plaintiffs could satisfy Rule 23(b)(3)'s requirement that a class action is superior to other available methods of adjudication. The plaintiff's had argued that the class members could still bring individual claims challenging the policy as applied to them if the class claim failed. Given this argument, the court questioned whether a class action would prove to be a superior method of adjudication.
Harris reminds class action practitioners of the importance of a careful evaluation of the Rule 23(b) requirements. While Rule 23(a)'s requirements are generally more easily satisfied, a class action must also satisfy one of the three subsections of Rule 23(b). As Harris demonstrates, simply identifying a potential common question among all class members is insufficient to survive the rigorous analysis of Rule 23(b). If individual questions must be decided to grant relief, class certification may be inappropriate.
The Eight Circuit's opinion is available here.