Hendricks-Robinson as crowbar: removing the certification bar to disability-based employment-discrimination class actions.

• Author: Garrett, Nathaniel

INTRODUCTION I. THE "INDIVIDUALIZED INQUIRY" IN DISABILITY RIGHTS STATUTES A. Rehabilitation Act of 1973 B. Americans with Disabilities Act II. RULE 23 CLASS ACTIONS AND DISABILITY RIGHTS LITIGATION A. Commonality in Discrimination-Based Class Actions B. Typicality in Discrimination-Based Class Actions C. Procedural Obstacles to Class Litigation: Focus on the Plaintiff's Disability III. CHANDLER AND ITS PROGENY: MANIPULATION OF THE INDIVIDUALIZED INQUIRY TO DENY CLASS CERTIFICATION IV. SUCCESSFUL CLASS CERTIFICATIONS UNDER THE ADA AND [section] 504: FOCUS ON DEFENDANT'S PATTERN OR POLICY A. Hendricks-Robinson and Permitted Disability-Based Employment-Discrimination Class Actions B. Comparison to Securities Fraud Class Actions C. Rejection of Chandler in ADA Title II and Title III Class Actions V. FEDERAL COURTS' IDEOLOGICAL APPROACHES IN DIRECT CONFLICT VI. REJECTION OF THE CHANDLER THRESHOLD BAR IN LIGHT OF THE MOTIVATING PURPOSES BEHIND DISABILITY RIGHTS LAWS AND RULE 23 A. Proposed Amendment to Rule 23 B. Proposed Restriction of Class Actions to Plaintiffs with the Same Disability C. Class Definitions Limited to Plaintiffs Who Meet the Definition of "Disabled" D. Justifications for Overturning Chandler CONCLUSION INTRODUCTION

Compared to their nondisabled counterparts, Americans with disabilities face significant discriminatory hurdles in finding and keeping employment. Today it is estimated that only one-third of Americans with disabilities who are qualified to work can find jobs. (1) Although the employment rate for persons without disabilities fluctuates around 80.5%, the rate is just 20.6% for those who require personal assistance to perform a life activity. (2)

The effects of employment discrimination against Americans with disabilities hardly constitute groundbreaking news. Indeed, prejudice in the workplace was one of the central motivating factors behind Congress's passage of America's two foremost disability rights laws: [section] 504 of the Rehabilitation Act of 1973 ([section] 504) (3) and the Americans with Disabilities Act of 1990 (ADA). (4) The ADA, which was regarded by its promoters as a civil rights bill for disabled persons, (5) dedicated an entire section, Title I, to protecting qualifying Americans from discrimination by their employers.

Despite Congress's ambition to reduce employment discrimination against people with disabilities, certain federal courts have made it extremely difficult for disabled employees to protect their federal fights on a comprehensive scale by refusing to hear ADA and [section] 504 lawsuits brought as class actions. Fashioned into their contemporary form in 1966, Rule 23 (6) class actions were designed in large part with civil fights litigants in mind. By allowing multiple plaintiffs to combine their related claims into one lawsuit, Rule 23 was intended to create an enhanced means for bringing so-called "private attorney general" lawsuits that enforce civil rights protections and deter wrongdoing. (7) Class actions were also designed to spread litigation costs among numerous litigants with similar claims, (8) an important consideration for Americans with disabilities, a group that has traditionally had limited access to financial resources. (9)

In addition, the class action device offers advantages through the use of individual actions or test cases. (10) Arguably, individual employees offended by discriminatory policies could bring a lawsuit seeking to invalidate the policy on behalf of other employees with disabilities. And since the ADA provides for attorney's fees, (11) such individual suits or test cases would not be prohibitively expensive for a litigant to bring. Nevertheless, individual suits pose two drawbacks as compared to a class action. First, test cases or individual suits can be mooted, resulting in delayed or no relief for other employees. In contrast, many circuits hold that a class action should not be dismissed merely because the case has been mooted out for the named plaintiff. (12) Second, test cases suffer from the inherent possibility that individual issues so predominate the litigation that resolution for the individual does not necessarily bring full relief to other similarly situated employees. (13) A class action, on the other hand, is specifically designed to resolve issues that are common to the class and that will aid in resolving all members' claims. (14)

Because of the litigation advantages that Rule 23 confers on civil rights plaintiffs, Alba Conte and Herbert Newberg, leading authorities on class action lawsuits, have observed that "[t]he potential for class-based suits [in disability discrimination cases] is enormous." (15) Since 1993, however, a string of federal cases has prevented disabled litigants from utilizing Rule 23 by holding that the class action is not an appropriate method for resolving disability-based employment discrimination claims. In Chandler v. City of Dallas, for example, a [section] 504 class action challenged a city policy that established physical standards for employees who drove on public roads as a part of their jobs. (16) According to the representative plaintiffs, one of whom had diabetes that required insulin for control and another who had impaired vision in his left eye, the failure to provide a waiver from the standards for disabled employees who could nevertheless drive safely violated their rights. (17)

Instead of conducting a traditional Rule 23 certification analysis, the Fifth Circuit refused to grant class certification on the grounds that only litigants who meet the definitional requirements of [section] 504 are eligible to bring suit under the law. In the court's opinion, the determination of whether a plaintiff is disabled or "otherwise qualified" under the law's definition is an individualized, case-by-case determination that operates as a threshold for preventing the use of class actions in such a context. (18)

The concept of the "individualized inquiry," upon which the Fifth Circuit based its decision in Chandler, was borrowed from the Supreme Court's 1987 case of School Board of Nassau County v. Arline. (19) In Arline, the Court held that [section] 504 requires courts to conduct an "individualized inquiry" to determine whether the plaintiff is "otherwise qualified" to perform the essential functions of the job, in spite of her disability. (20) Ironically, the Court had created the individualized inquiry in an attempt to provide more protections for employees by ensuring that prejudices about certain disabilities did not mechanically lead judges to conclude that the employer had acted lawfully. (21)

Despite the Fifth Circuit's dubious utilization of the individualized inquiry, its approach in Chandler has been mimicked and extended in a handful of [section] 504 and ADA cases. Courts including the Tenth Circuit Court of Appeals, (22) the Northern District of California, (23) and the Northern District of West Virginia (24) have all since held that cases brought under the ADA or [section] 504 should not be certified as class actions because the requisite individual inquiry acts as a form of threshold bar. (25) This position was summed up by the Northern District of West Virginia in Burkett v. United States Postal Service when it wrote that "[i]n the view of several federal courts, the need for this individualized, fact-driven determination renders Rehabilitation Act and ADA actions ill-suited for class treatment." (26)

Additional courts, perhaps misinterpreting Chandler, have treated the individualized inquiry test not as a threshold bar, but instead as a factor to be considered during the Rule 23(a) analysis. District courts for the Middle District of Tennessee (27) and the Northern District of Georgia, (28) for example, have held that disability-based employment-discrimination class actions cannot be maintained because the individual questions involved in determining whether the plaintiffs are disabled or otherwise qualified under the statutes destroy the requisite typicality and commonality. Thus, over time the individualized inquiry has been utilized by federal courts to fashion both a threshold bar to disability class actions and a factor destroying commonality and typicality within disability class actions.

Not all federal courts agree with Chandler and its progeny, however, and disability-based class actions have been certified in both employment and other contexts. Most notably in the Central District of Illinois's case Hendricks-Robinson v. Excel Corp. (29)--but in several other district court cases as well (30)--courts have rejected Chandler's approach, certifying class actions in disability-based employment-discrimination cases. In Delise v. Federal Express Corp., for example, defendants relied on Chandler for the proposition that an "ADA claim cannot be maintained as a class action and thus should be dismissed as a matter of law," an argument the district court flatly rejected, agreeing instead with the plaintiff that "ADA class actions are not prohibited as a matter of law." (31) Moreover, defendants invoking Chandler in ADA cases dealing with government-related services (Title II) or public accommodations (Title III) have routinely been rebuffed, suggesting that its applicability outside the employment context is limited. (32)

The ideological split among courts over how to treat disability-based employment-discrimination class actions carries broad implications for the future of disability-rights litigation. Should the principles of Chandler and its progeny prevail, employers could perpetuate a policy of discrimination against a class of persons with disabilities, whereas that class of employees would be barred from challenging such conduct on a class-wide basis. Disabled litigants would be required to bring claims on a case-by-case basis, with all of the related financial and procedural burdens of that approach. (33)

During the 1970s and early 1980s...