Amicus Curiae Brief — Epic Sys. Corp. v. Lewis, 138 S. Ct. 42 (2017) (No. 16-285)

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EPIC SYSTEMS CORPORATION,

Petitioner,

Vv.

JACOB LEWIS,

Respondent.

ERNST & YOUNG LLP, ET AL..,

Vv.

Petitioners,

STEPHEN MORRIS, ET AL.,

Respondents.

NATIONAL LABOR RELATIONS BOARD,

Vv.

Petitioner,

MURPHY OIL USA, INC., ET AL.,

Respondents.

On Writs Of Certiorari To The United States Courts

Of Appeals For The Fifth, Seventh, And Ninth Circuits

BRIEF OF AMICI CURIAE NAACP LEGAL

DEFENSE & EDUCATIONAL FUND, INC., IMPACT

FUND, AND 30 CIVIL RIGHTS ORGANIZATIONS

IN SUPPORT OF RESPONDENTS IN NOS. 16-285

& 16-300 AND PETITIONER IN NO. 16-307

SHERRILYN IFILL

Director-Counsel

JANAI NELSON

SAMUEL SPITAL

RAYMOND AUDAIN

Counsel of Record

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INC.

40 Rector Street, 5th Floor

New York, NY 10006

(212) 965-2200

raudain@naacpldf org

August 16, 2017

JOCELYN D. LARKIN

LINDSAY NAKO

IMPACT FUND

125 University Avenue

Suite 102

Berkeley, CA 94710

(510) 845-3473

oOo lS NSS

Coty MONTAG

KYLE BARRY

NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, INc.

1444 I Street NW

Washington, DC 20005

(202) 682-1300

JOSEPH M. SELLERS

CHRISTINE WEBBER

COHEN MILSTEIN SELLERS

& Toit, PLLC

1100 New York Avenue NW,

5th Floor

Washington, DC 20005

(202) 408-4600

TABLE OF CONTENTS

Page

SC II etcsisinnnconsssnasccunncosveresacnsss i

Ee Fer I oe ccissccnccccsccecetscseveccseses iii

INTERESTS OF AMICI CURIAE ....................2.0 1

INTRODUCTION AND SUMMARY OF ARGU-

ARREARS IF ar esa an SE SSO ip ORS SB 2

REESE SEER ct oa ee Mr NSRM WEES OEE ae 7

I. CONCERTED ACTIONS HAVE HELPED

TO ENSURE OUR NATION’S PROGRESS

TOWARD EQUAL EMPLOYMENT OPPOR-

itbiaiicnsinnbiiecidieiancthiinilinicneriéamupinaiceons 7

tl. CONCERTED ACTIONS ARE UNIQUELY

EFFECTIVE IN REMEDYING AND DE-

TERRING SYSTEMIC EMPLOYMENT DIS-

ESSE RTS a OG ICO 11

A. Concerted Actions Promote Employee

REE EESTI Brae a a 1]

B. Concerted Actions Allay Fears and Re-

duce the Risks of Retaliation ................ 15

C. Concerted Actions Ensure Corporate

Transparency and Promote Accounta-

ae ge rE a RT 17

Ill. MOST WORKERS CANNOT USE KEY

CIVIL RIGHTS LEGAL THEORIES OR

OBTAIN BROAD INJUNCTIVE RELIEF

IN THEIR INDIVIDUAL ACTIONS ........... 19

A. Disparate Impact Theory ...................... 19

TABLE OF CONTENTS -— Continued

Page

B. Pattern or Practice Theory.................... 23

C. Systemic Injunctive Relief.................... 25

i a ian eeeansengianiianes 27

APPENDIX

Appendix A — List of Additional Amici .................... A-1

TABLE OF AUTHORITIES

Page(s)

CASES

Albemarle Paper Co. v. Moody, 422 U.S. 405

GE ictnnctccinnencesssvssvesanissbinaiabianiaidieiaiomamas 7, 8, 20, 26

Amchem Prods., Inc. v. Windsor, 521 U.S. 591

CRT D crnvennivecosesarencnseseseseiemusbisiuipunabeniieiaaaaanaaaanannan 14

AT&T Mobility LLC v. Concepcion, 563 U.S. 333

IIE TP ccncswsccvseuscesissesnanseiinedansaptenbeaieselseiiediinnaibeneiaae 1

Bacon v. Honda of Am. Mfg., 370 F.3d 565 (6th

CFE TO onevccecnsvecssccsnicitesntevsinisiashiibiiabaiaemaiandanial 24

Bennett v. Nucor Corp., 656 F.3d 802 (8th Cir.

FEI ED svsensdvincsccesecconcnsesssmnenenitiantensedidaiiaianeumaadiels 12

Brand v. Comcast Corp. , 302 F.R.D. 201 (N.D. Il

BINED evceccnccussesecinasspeviseisoniienbinididammenellansiiiamiaandan 5,12

Brown v. Bd. of Educ. , 347 U.S. 483 (1954).................. 3

Burlington N. & Santa Fe Ry. v. White, 548 U.S.

ID xvencesvevesecceontetnsenstonsssnmnnsigansimianeniabneiadaeaal 15

Califano v. Yamasaki, 442 U.S. 682 (1979)................. 25

Chin v. Port Auth. of N.Y. & N.dJ., 685 F.3d 135

GE GAS SEINE <vcxceesncncevennsscionsennsenbieiesaiiaasamenin 21, 24

Circuit City Stores, Inc. v. Adams, 532 U.S. 105

GIT ecwenve100sscveesescsenseseeseienepedeiliniadeiieiaiamamaiaaaa nan 1

Coe v. Yellow Freight Sys. , 646 F.2d 444 (10th Cir.

TIIUITED vdcencsccnesinennpensiesnesiniatasibsianiibhigestanmiisamaaanael 21

Cooper v. Fed. Reserve Bank of Richmond, 467

CARs SER COREE x: ccevccecsvenscgecnnspeipineiessaiah-cadeaandeimnaa 1

TABLE OF AUTHORITIES — Continued

Page(s)

Coopersmith v. Roudebush, 517 F.2d 818 (D.C.

EELS a 21

Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033

I simeimianiineonecess 21

Cote v. Wal-Mart Stores, Inc., No. 1:15-cv-12945-

WGY (D. Mass. May 16, 2017), ECF No. 83............. 4

Curtis-Bauer v. Morgan Stanley & Co., No. 3:06-

cv-3903, 2008 WL 4667090 (N.D. Cal. Oct. 22,

eS SR ee oe 5

Davis v. Coca-Cola Bottling Co., 516 F.3d 955

EERE ee 24

Davis v. Eastman Kodak Co., Nos. 6:04-cv-6098,

6:07-cv-6512 (W.D.N.Y. Sept. 3, 2010), ECF

a etiibdinnnenieunocecs 5

Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326

a eemietugnconeons 14

Dothard v. Rawlinson, 433 U.S. 321 (1977) ........... 9, 20

Duke v. Univ. of Tex. at El Paso, 729 F.2d 994 (5th

ES 15

E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431

I cscmnmensene 10

EEOC v. Shell Oil Co., 466 U.S. 54 (1984) ................. 24

Ellis v. Houston, 742 F.3d 307 (8th Cir. 2014) .....12, 13

Ernst v. City of Chicago, 837 F.3d 788 (7th Cir.

a csndemapunpenerumecesne 20

Franks v. Bowman Transp. Co., 424 U.S. 747

a cocninmpenonnseness 1

TABLE OF AUTHORITIES — Continued

Page(s)

Gilmer vu. Interstate/Johnson Lane Corp., 500

IED Scicitnccniccininsicincncsinagnbininntaitaiietniiionantes 18

Gonzalez v. Abercrombie & Fitch Stores, Inc., Nos.

3:03-cv-2817, 3:04-cv-4730, 3:04-cv-4731 (N.D.

Cal. Apr. 15, 2005), ECF Nos. 141, 16, 20.................. 5

Gonzales v. City of New Braunfels, 176 F.3d 834

SI IT inci nadacincceichdasteilii dees didehcabeesdaiaementiiesinenane 21

Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444

I EE ECT BOS ERE a Ste SUAS a ee 1

Griggs v. Duke Power Co., 401 US. 424 (1971).....1, 7, 8, 11

Hall v. Gus Constr. Co., 842 F.2d 1010 (8th Cir.

DEE PE er RE Le CR RT Se eee 12

Hankins v. Best Buy Co., No. 10-cv-4508, 2011

WL 6016233 (N.D. Ill. Dec. 2, 2011)..............0000...... 21

Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993).......... 12

Haynes v. Shoney’s, Inc., No. 3:89-cv-30093, 1992

WL 752127 (N.D. Fla. June 22, 1992)..................... 10

Haynes v. Shoney’s, Inc., No. 3:89-cv-30093, 1993

WL 19915 (N.D. Fla. Jan. 25, 1993)........................ 10

Hernandez v. Reno, 91 F.3d 776 (5th Cir. 1996)......... 25

Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165

ESI ER Spek Be as MS. RIES 11, 14

Houser v. Pritzker, 28 F. Supp. 3d 222 (S.D.N-Y.

eG ephialeitiinnditissieciivebnindimpuaddliningisialie debate eles ata 20

TABLE OF AUTHORITIES — Continued

Page(s)

Ingram v. Coca-Cola Co., 200 F.R.D. 685 (N.D.

HER NT ER SRE tiie RN ee Te eT ee 5

In re Primus, 436 U.S. 412 (1978) ..............cccccenreesesees 11

Int'l Bhd. of Teamsters v. United States, 431 U.S.

TIN it cis sncecarihseninininaidiahictambandainiibiaaaitemicdaneiin 24, 26

Int'l Union, United Auto. v. Johnson Controls,

I i eceemnaend 8

Jackson v. Quanex Corp., 191 F.3d 647 (6th Cir.

i iasiciicheieelica inca aici pitendieagiaiinign achat Ladi iat dditant onsale 13

Jarvaise v. Rand Corp., 212 F.R.D. 1 (D.D.C.

RETR NE AS Rl Ls Eco Oe 14

Jenson v. Eveleth Taconite Co., 824 F. Supp. 847

Se A ERS SEI eS a. SAAT Pee 12,13

Lewis v. City of Chicago, 560 U.S. 205 (2010).............. 1

Lowery v. Circuit City Stores, Inc., 158 F.3d 742

gE RIES SE A AN 6 EN ows 24, 26

Maldonado v. City of Altus, 433 F.3d 1294 (10th

RRR RST PES EERE RET ene ey POE eS 21

Marshall v. Goodyear Tire & Rubber Co., 554

SEE ER TE RE 25

McClain v. Lufkin Indus., Inc., 187 F.R.D. 267

I i laaidiatonociion 16

McClain v. Lufkin Indus., No. 9:97-cv-63, 2005

U.S. Dist. LEXIS 42545 (E.D. Tex. Jan. 13,

McClain v. Lufkin Industries, Inc., 519 F.3d 264

LS TEL seal eR ee gee Sa ae eee g

vii

TABLE OF AUTHORITIES — Continued

Page(s)

McReynolds v. Merrill Lynch, 672 F.3d 482 (7th

Nee ee ol ditleadalinds 20

Meacham v. Knolls Atomic Power Lab., 554 U.S.

a etaiciaeiitniati 22

Moragne v. States Marine Lines, 398 U.S. 375

SEALER EE ME CME esd NERS MPR SERA Wie Senate 27

Mullen v. Treasure Chest Casino, LLC, 186 F.3d

A a a a 15, 17

NAACP v. Button, 371 U.S. 415 (1963)..........0..0.000.0... 11

Newman v. Piggie Park Enters., Inc., 390 U.S.

ENO EIS EE Pes Re ele 13

NLRB v. City Disposal Sys. Inc., 465 U.S. 822

NST EEA SI as RTE Ay Ee DCSE OT 6

NLRB v. Jones & Laughlin Steel Corp., 301 U.S.

TEER lle TL Ie Se NE Nee TEND 5

Oncale v. Sundowner Offshore Servs., Inc., 523

EIT iid ccectatslataiiatcastnichatddetimanbinieadtinneiidaicnetensin 12

Raytheon Co. v. Hernandez, 540 U.S. 44 (2003) ......... 20

Roberts v. Texaco, Inc. , 979 F. Supp. 185 (S.D.N_Y.

ETE, ISSR NSS BAG LEI ISA CCE 19

Rowe v. GM Corp., 457 F.2d 348 (5th Cir. 1972) ........ 20

Sandoval v. Am. Bldg. Maint. Indus., 578 F.3d

SAT RE ee ee 13

Satchell v. FedEx Corp., Nos. 3:03-cv-2659, 3:03-

cv-2878 (N.D. Cal. Aug. 14, 2007), ECF Nos.

Ee a SS Be lage 2 SE ES St el 5

Vili

TABLE OF AUTHORITIES — Continued

Page(s)

Scott v. Family Dollar Stores, Inc., 733 F.3d 105

cia ili iaioabalinl 20

Sellars v. CRST Expedited, Inc., No. C15-117,

2017 WL 1193736 (N.D. Iowa 2017)................0...... 12

Sharpe v. Cureton, 319 F.3d 259 (6th Cir. 2003)........ 25

Smith v. City of Jackson, 544 U.S. 228 (20085)............ 20

Smith v. Nike Retail Servs., 234 F.R.D. 648 (N.D.

al AR RES MOORS LIES Fs OC AE 12

Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d 980

ESTERS SRR SEM PET Ps eK oa 23

United States v. City of New York, 637 F. Supp. 2d

i FT TTR TAEDA 20

United States v. Ironworkers Local 86, 443 F.2d

AERA IE RASS 5 ase SE 24

Velez v. Novartis Pharm. Corp., 244 F.R.D. 243

onal cicaiellcieaeinihiiniidlaialiciaiiadedniiaite 5,12

W. Air Lines v. Criswell, 472 U.S. 400 (1985)............... 8

Walmart Stores, Inc. v. Dukes, 564 U.S. 338

SERRE ESS 2 A ATPL RT 24

Wards Cove Packing Co. v. Atonio, 490 U.S. 642

EE TT STEEL O Le A SRR AE A Se, NOOO 22

Warren v. Xerox Corp., No. 1:01-cv-2909, 2008

WL 4371367 (E.D.N_Y. Sept. 19, 2008)..................... 5

Watson v. Fort Worth Bank & Trust, 487 U.S. 977

“TABLE OF AUTHORITIES — Continued

Page(s)

Williams v. Sprint/United Mgmt. Co., No. 03-

2200-JWL, 2007 WL 2694029 (D. Kan. Sept.

ii TEI ionic odecetieng-aebenieneelabamaliciibeaieeiiasiadiaiieaseaniibialeninenialneniriis 5

Wilson v. Sw. Airlines Co.,517 F. Supp. 292 (N.D.

GAERTNER PAR ra ea Te Ste a Ne 8

Woodward v. Emulex Corp., 714 F.3d 632 (1st

STITT iicodishaunicinictaniaieitiouniamienniaietimemuciasmnnunamentotie 22

Wright v. Universal Mar. Serv. Corp., 525 U.S. 70

RRR STE nes ARIE SRA. at a RE ne 1

Young v. Covington & Burling LLP, 846 F. Supp. 2d

IE icstinantsincitegddidchancaddieninsidndendsatdatenasedt 21

STATUTES

en , sanennenmeniusionniebeasaiontel 6

ELANTRA TOME 6

ccs nnigninaeidelidigliehiandanl 10

I anes acne cemmianeibiniiateiell 10

BE I oni cictesnsrenionensessesnesseten 10, 20

es ee I Oe CII cariciececcocinencccencsesessossusensnes 7

Oe I snc inlisinerchensnpcentitheipeieniodmisconppmngens 19

RULES

EE nn ner erro ne 25

ER ERE ante Pe sae seen mre MI 1

TABLE OF AUTHORITIES — Continued

Page(s)

OTHER AUTHORITIES

Hon. Robert L. Carter, The Federal Rules of Civil

Procedure as a Vindicator of Civil Rights, 137

U. Pa. L. Rev. 2179 (1989)................ccccceeeceeeseseeeseeseees 4

Jack Greenberg, Civil Rights Class Actions: Pro-

cedural Means of Obtaining Substance, 39

Ariz. L. Rev. 575 (1907) ........ccsccecccccscescccsssccsescssesceses 3

Robert Samuel Smith, Race, Labor & Civil Rights:

Griggs versus Duke Power and the Struggle for

Equal Employment Opportunity 84 (David

Goldfield ed., La. State Univ. Press 2008).............. 11

S. Rep. No. 92-415 (1971), reprinted in Sub-

comm. on Labor of the S. Comm. on Labor and

Pub. Welfare, Legislative History of the Equal

Opportunity Act of 1972 (1972)..........cccceeeeeeeeeeeeeeees 10

Suzette M. Malveaux, Clearing Civil Procedural

Hurdles in the Quest for Justice, 37 Ohio N.U.

Bp ES aE bnccnsesnscstusccenemnnsciaceovssosinnasendens 15, 17

U.S. Dep’t of Labor, Women’s Bureau, Fact

Sheet, Pay Secrecy, 1 (Aug. 2014), https://Awww.

dol.gov/wb/media/pay_secrecy.pdf .....................000 17

AAA Employment Arbitration Rules and Medi-

ation Procedures, Rule 23 (2009)..............ccscessseeeees 18

TABLE OF AUTHORITIES — Continued

Page(s)

1 Lindemann, Grossman & Weirich, Employ-

ment Discrimination Law 3-3 (5th ed. 2012)...21, 22

Elizabeth Tippett, Robbing a Barren Vault: The

Implications of Dukes v. Wal-Mart for Cases

Challenging Subjective Employment Prac-

tices, 29 Hofstra Lab. & Emp. L.J. 433 (2012)........ 23

INTERESTS OF AMICI CURIAE'

This brief is submitted by the NAACP Legal De-

fense and Educational Fund, Inc., the Impact Fund,

and 30 other non-profit civil rights and legal advocacy

organizations.

The NAACP Legal Defense and Educational

Fund, Inc. (LDF) is a non-profit legal organization

that, for more than seven decades, has fought to

achieve racial justice and ensure that America fulfills

its promise of equality for all. In this Court and other

federal and state courts, LDF has litigated numerous

class actions, which are particularly effective in facili-

tating concerted action to secure systemic change. See,

e.g., Lewis v. City of Chicago, 560 U.S. 205 (2010);

Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867

(1984); Franks v. Bowman Transp. Co., 424 U.S. 747

(1976); Griggs v. Duke Power Co., 401 U.S. 424 (1971);

Newman v. Piggie Park Enters., Inc., 390 U.S. 400

(1968). LDF has also appeared as a party and as an

amicus before this Court in several cases involving ar-

bitration issues. See, e.g., AT&T Mobility LLC v. Con-

cepcion, 563 U.S. 333 (2011); Green Tree Fin. Corp. v.

Bazzle, 539 U.S. 444 (2003); Circuit City Stores, Inc. v.

Adams, 532 U.S. 105 (2001); Wright v. Universal Mar.

Serv. Corp., 525 U.S. 70 (1998).

+ Pursuant to Supreme Court Rule 37.6, counsel for amici

curiae state that no counsel for a party authored this brief in

whole or in part and that no person other than amici curiae, their

members, or their counsel made a monetary contribution to the

preparation or submission of this brief. All parties have consented

to the filing of this brief.

The Impact Fund is a non-profit foundation that

provides funding, training, and co-counsel to public in-

terest litigators across the country. The Impact Fund

has been counsel in numerous civil-rights class ac-

tions, including cases challenging employment dis-

crimination, lack of access for persons with disabilities,

and violations of fair housing laws.

Additional amici are listed in Appendix A.

INTRODUCTION AND

SUMMARY OF ARGUMENT

American democracy depends upon our unwaver-

ing commitment to equal opportunity. Federal labor

law honors that commitment by guaranteeing employ-

ees the right to challenge workplace discrimination

through concerted activity, including picketing, strik-

ing, and group adjudication of workplace rights. Yet

mandatory pre-dispute arbitration agreements, which

have become increasingly prevalent in the American

workplace, now commonly prohibit employees from

joining together in any combination and in any legal

forum to vindicate their right to be free from workplace

discrimination, and other core statutory rights.? By

barring every imaginable form of group legal challenge

2 Amici’s arguments directly relate to the arbitration provi-

sions at issue in NLRB v. Murphy Oil, No. 16-307 (5th Cir.) and

Ernst & Young LLP v. Morris, No. 16-300 (9th Cir.). The arbi-

tration provision in Epic Systems v. Lewis, No. 16-285 (7th Cir.)

excludes “claims alleging discrimination, harassment, or retalia-

tion” from its coverage. Epic Systems v. Lewis, Petition at 32a.

to an employer’s unlawful workplace practices — from

simple joinder to consolidation of claims to collective

and class actions — these contractual prohibitions pose

a substantial threat to Congress’ longstanding goal of

eradicating discrimination in the American workplace.

Specifically, workers will be precluded from using cer-

tain core civil rights legal theories that have been cru-

cial for securing equal opportunity in the workplace.

For civil rights, the consequences of permitting unre-

strained and ubiquitous use of arbitration clauses in

individual employment agreements will be profound.

“Civil rights and class actions have an historic

partnership.” Jack Greenberg, Civil Rights Class Ac-

tions: Procedural Means of Obtaining Substance, 39

Ariz. L. Rev. 575, 577 (1997) Landmark class actions

and other forms of group litigation have long been es-

sential components of our nation’s slow but deliberate

progress toward a “more perfect Union.” This Court’s

1954 decision in Brown v. Board of Education is but

one example of how concerted action has been the foun-

dation for promoting equal opportunity for all Ameri-

cans. 347 U.S. 483 (1954). Civil rights concerted actions

have been indispensable in reducing discrimination in

almost every sphere of American society. When a plain-

tiff brings a class action under the civil rights laws, “he

does so not for himself alone but also as a ‘private at-

torney general,’ vindicating a policy that Congress con-

sidered the highest priority.” See Newman v. Piggie

Park Enters., Inc. , 390 U.S. 400, 400-02 (1968) (success-

fully enjoining discrimination against African Ameri-

cans at a South Carolina restaurant chain).

Concerted actions remain essential to combat per-

sistent discrimination. See Hon. Robert L. Carter, The

Federal Rules of Civil Procedure as a Vindicator of

Civil Rights, 137 U. Pa. L. Rev. 2179, 2184 (1989) (here-

inafter “Carter, Federal Rules”) (noting the “special de-

pendence” of civil rights litigation on the device of the

class action). Since the passage of the Civil Rights Act

of 1964, many of the most significant employment dis-

crimination cases have been brought as concerted ac-

tions, and — with few exceptions — could not have been

brought or would not have achieved successful results

as individual actions. Concerted actions can remedy

civil rights violations in circumstances where workers

are unlikely to proceed alone, for lack of resources or

because of well-documented fear of retaliation. In the

employment context, concerted legal actions also serve

broader public interests by remedying and deterring

civil rights violations and dismantling systemic dis-

crimination in the workplace.

Discrimination claims pursued in concert have en-

abled workers to expose institution-wide discrimina-

tion and have resulted in comprehensive remedial

orders that brought into legal compliance the employ-

ment practices of some of our country’s leading corpo-

rations, including Abercrombie & Fitch, Coca-Cola,

Comcast, Eastman Kodak, FedEx, Morgan Stanley, No-

vartis, Sodexho Marriott Services, Sprint, Wal-Mart,

and Xerox.*

8 See, e.g., Order, Cote v. Wal-Mart Stores, Inc., No. 1:15-cv-

12945-WGY (D. Mass. May 16, 2017), ECF No. 83 (approving class

The importance of concerted action in the employ-

ment context has long been a cornerstone of federal la-

bor law as a matter of both principle and practice. As

this Court explained more than 80 years ago in NLRB

settlement on behalf of 1200 current and former employees who

were denied spousal health benefits for their same sex spouses);

Order and Judgment, Brand v. Comcast Corp., No. 11-cv-8471

(N.D. Tl. June 15, 2016), ECF No. 169 (approving class settlement

for 385 African-American technicians alleging a hostile work en-

vironment); Velez v. Novartis Pharm. Corp., No. 04 Civ. 09194(CM),

2010 WL 4877852 (S.D.N.Y. Nov. 30, 2010) (following trial of

class gender and pregnancy discrimination claims on behalf of

6,200 female pharmaceutical sales representatives, settlement

approved with detailed programmatic relief and $152 million set-

tlement fund); Stip. & Order, Davis v. Eastman Kodak Co., Nos.

6:04-cv-6098, 6:07-cv-6512 (W.D.N_.Y. Sept. 3, 2010), ECF Nos. 350,

27 (approving class settlement on behalf of over 3,000 current and

former African-American employees); Curtis-Bauer v. Morgan

Stanley & Co., No. 3:06-cv-3903, 2008 WL 4667090 (N.D. Cal. Oct.

22, 2008) (approving class settlement on behalf of over 1,300 Af-

rican-American and Latino financial advisors); Warren v. Xerox

Corp., No. 1:01-cv-2909, 2008 WL 4371367 (E.D.N.Y. Sept. 19, 2008)

(approving class settlement on behalf of nearly 1,500 African-

American sales representatives); Williams v. Sprint/United Mgmt.

Co., No. 03-2200-JWL, 2007 WL 2694029 (D. Kan. Sept. 11, 2007)

(approving settlement of age discrimination collective action for

1700 workers laid off as a result of company’s force ranking sys-

tem); Order, Satchell v. FedEx Corp., Nos. 3:03-cv-2659, 3:03-cv-

2878 (N.D. Cal. Aug. 14, 2007), ECF Nos. 780, 324 (approving class

settlement on behalf of 20,000 African-American and Latino em-

ployees); Consent Decree, Gonzalez v. Abercrombie & Fitch Stores,

Inc., Nos. 3:03-cv-2817, 3:04-cv-4730, 3:04-cv-4731 (N.D. Cal. Apr.

15, 2005), ECF Nos. 141, 16, 20 (approving consent decree settling

claims of systemic discrimination against Latino, African-American,

Asian-American, and female applicants and employees); Ingram

v. Coca-Cola Co., 200 F.R.D. 685 (N.D. Ga. 2001) (approving class

settlement on behalf of 2,200 current and former African-American

employees).

v. Jones & Laughlin Steel Corp., a single employee “was

helpless in dealing with an employer ... he was de-

pendent ordinarily on his daily wage for the mainte-

nance of himself and his family; ... if the employer

refused to pay him the wages that he thought fair, he

was nevertheless unable to leave the employ and resist

arbitrary and unfair treatment.” 301 U.S. 1, 33 (1937).

In enacting § 7 of the Nat'l Labor Relations Act, 29

U.S.C.A. §§ 151 et seq., and § 2 of the Norris-LaGuardia

Act, 29 U.S.C.A. §§ 101 et seg., before that, Congress

took direct steps to help equalize the bargaining power

of employers and their employees by guaranteeing em-

ployees the right to band together in confronting an

employer. NLRB v. City Disposal Sys. Inc. , 465 U.S. 822,

834 (1984). This statutorily protected right to proceed

in concert furthers those same goals by ensuring

meaningful access to a neutral dispute resolution pro-

cess that can provide a complete and effective remedy

for unlawful employer conduct directed at similarly

situated employees. Employment contracts that pro-

hibit concerted legal actions destroy that equilibrium

and hazard America’s hard-won progress towards

equality.

Forcing workers to proceed alone creates unique

dangers for civil rights enforcement. Such restrictions

effectively foreclose the use of two crucial methods for

proving employment discrimination: disparate impact

and pattern-or-practice theories. Restrictions on con-

certed actions also limit the availability of systemic

injunctions, a tool that has been critical to the eradica-

tion of discrimination in the workplace. If employers

can preclude workers from acting together in every

forum, they can — and will — effectively extinguish the

civil rights claims of the most vulnerable members of

the workforce.

ARGUMENT

I. CONCERTED ACTIONS HAVE HELPED

TO ENSURE OUR NATION’S PROGRESS

TOWARD EQUAL EMPLOYMENT OPPOR-

TUNITY.

For decades, as both this Court and Congress have

recognized, concerted actions in federal court have

spurred progress toward equal opportunity and ad-

vanced our federal antidiscrimination laws’ broad re-

medial “purpose|| ... of eradicating discrimination

throughout the economy.” Albemarle Paper Co. v.

Moody, 422 U.S. 405, 405-06 (1975). This progress

would not have occurred if, instead of banding together

to pursue claims in open court, employees were forced

into individual, confidential dispute-resolution pro-

ceedings.

Concerted actions have been instrumental to the

development of employment discrimination jurispru-

dence. For example, the transformative decision of

Griggs v. Duke Power Co. — which established that Title

VII of the Civil Rights Act of 1964, 42 US.C.A.

$§ 2000(e) et seg., does not tolerate facially-neutral

employment practices that operate as discriminatory

barriers to employment — was brought as a class action

by a group of African-American power plant employ-

ees. 401 U.S. 424, 426 (1971). Similarly, this Court’s de-

cision in Albemarle Paper — a class case challenging a

racially discriminatory seniority system and employ-

ment testing — established a presumption that back-

pay should be awarded in employment discrimination

cases; that holding created a powerful economic incen-

tive for employers to comply with Title VII. 422 U.S. at

405. These cases and others would not have been pos-

sible if forced arbitration clauses bound the plaintiff

employees.

Concerted actions have also diversified the Amer-

ican workplace by successfully challenging a wide

range of discriminatory employment rules and prac-

tices, many based on outdated stereotypes. Such cases

have established that:

* Women cannot be categorically excluded from

jobs that may harm their reproductive capac-

ity. Int’l Union, United Auto. v. Johnson Con-

trols, Inc., 499 U.S. 187 (1991).

e Flight engineers cannot be forced to retire at

age 60. W. Air Lines v. Criswell, 472 U.S. 400

(1985).

¢ Men can apply to work as flight attendants.

Wilson v. Sw. Airlines Co., 517 F. Supp. 292

(N.D. Tex. 1981).

¢ Women cannot be excluded from prison guard

jobs by arbitrary height and weight require-

ments. Dothard v. Rawlinson, 433 U.S. 321

(1977).*

Other examples of concerted legal action similarly

illustrate the power of such cases as a mechanism

for ending workplace discrimination. In McClain v.

Lufkin Industries, Inc., the Fifth Circuit affirmed the

district court’s holding that a large Texas manufactur-

ing plant’s “practice of delegating subjective decision-

making authority to its white managers with respect

to ... promotions resulted in a disparate impact on [a

class of over 700) black employees in violation of Title

VIL.” 519 F.3d 264, 272 (5th Cir. 2008). Among the dis-

trict court’s findings was that, because of the com-

pany’s practices, “white employees hal[d] a significant

advantage in gaining the skills and abilities needed to

qualify them for promotion ... [whereas] Black em-

ployees [were] more likely to be placed in dead-end

positions and left to seek training on their own.”

McClain v. Lufkin Indus., No. 9:97-cv-63, 2005 U.S.

Dist. LEXIS 42545, at *32-33 (E.D. Tex. Jan. 13, 2005),

aff’d in relevant part, 519 F.3d 264 (5th Cir. 2008). Sim-

ilarly, in Haynes v. Shoney’s, Inc., the district court cer-

tified a class and ultimately issued a ruling that

remedied “an overt policy of blatant racial discrimina-

tion and retaliation” at the Shoney’s restaurant chain

that was “developed and directed” by “top Shoney’s

* Amici’s Appendix B lists 118 concerted legal actions that

have enforced civil rights protections in the workplace.

management” and “implemented by all-white supervi-

sory and management personnel.” No. 3:89-cv-30093,

1992 WL 752127, at *2 (N.D. Fla. June 22, 1992); see

also Haynes v. Shoney’s, Inc., No. 3:89-cv-30093, 1993

WL 19915, at *6-7 (N.D. Fla. Jan. 25, 1993) (approving

consent decree requiring, inter alia, $105 million in re-

lief to class members and significant corporation-wide

reforms). As this Court has explained, “suits alleging

racial or ethnic discrimination are often by their very

nature class suits, involving classwide wrongs.” E. Tex.

Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 405

(1977).

Consistent with these cases, Congress has recog-

nized that concerted actions are integral to the enforce-

ment of civil rights laws. In 1972, when Title VII was

amended by the Equal Employment Opportunity Act,

proposals to abolish class actions or to restrict their

scope in Title VII cases were rejected. As the Senate

Report stated: “The committee agrees with the courts

that Title VII actions are by their very nature class

complaints, and that any restriction on such actions

would greatly undermine the effectiveness of Title

VIL.” S. Rep. No. 92-415, at 27 (1971), reprinted in Sub-

comm. on Labor of the S. Comm. on Labor and Pub.

Welfare, Legislative History of the Equal Opportunity

Act of 1972, at 436 (1972). Both the Equal Pay Act,

29 U.S.C.A. § 206(d), and the Age Discrimination in

Employment Act, 29 U.S.C.A. §§ 621 et seg., incorpo-

rate the enforcement provisions of 29 U.S.C.A. § 216(b),

which expressly authorize “[aJn action to ... be

maintained ... by any one or more employees for and

in behalf of himself or themselves and other employees

similarly situated.” This Court has recognized that in

“(t]he ADEA, through incorporation of § 216(b) [of the

FLSA]. . . Congress has stated its policy that. . . plain-

tiffs should have the opportunity to proceed collec-

tively.” Hoffman-La Roche, Inc. v. Sperling, 493 U.S.

165, 170 (1989).

Il. CONCERTED ACTIONS ARE UNIQUELY

EFFECTIVE IN REMEDYING AND DE-

TERRING SYSTEMIC EMPLOYMENT DIS-

CRIMINATION.

A. Concerted Actions Promote Employee

Collaboration.

For individuals who have experienced discrimina-

tion and other civil rights violations, “association for

litigation may be the most effective form of political as-

sociation.” NAACP v. Button, 371 U.S. 415, 431 (1963);

accord In re Primus, 436 U.S. 412, 423-26 (1978).

For example, a sense of shared commitment among

African-American workers at Duke Power in North

Carolina helped to catalyze the class action that led to

this Court’s landmark decision in Griggs. 401 U.S. at

431; see also Robert Samuel Smith, Race, Labor & Civil

Rights: Griggs versus Duke Power and the Struggle for

Equal Employment Opportunity 84-90, 113, 177-81

(David Goldfield ed., La. State Univ. Press 2008).

The ability of workers to share their experiences

with one another and take concerted legal action has

also helped to facilitate the eradication of hostile and

unlawful harassment in some workplaces. As this

Court has observed, “whether an environment is ‘hos-

tile’ or ‘abusive’ can be determined only by looking at

all of) the circumstances.” Harris v. Forklift Sys., Inc.,

510 U.S. 17, 23 (1993) (emphasis added). This inquiry

may be both complex and subtle because “(t]he real so-

cial impact of workplace behavior often depends on a

constellation of surrounding circumstances, expecta-

tions, and relationships which are not fully captured

by a simple recitation of the words used or the physical

acts performed.” Oncale v. Sundowner Offshore Servs.,

Inc., 523 U.S. 75, 81-82 (1998).

As such, victims of harassment frequently join

with their co-workers to challenge abusive environ-

ments in multi-plaintiff, collective, or class actions.°

5 See, e.g., Ellis v. Houston, 742 F.3d 307 (8th Cir. 2014) (five

African-American correctional officers challenged pattern of ra-

cial harassment by supervisor in Nebraska penitentiary); Bennett

v. Nucor Corp., 656 F.3d 802 (8th Cir. 2011) (six African-American

steel production plant workers unlawfully subjected to racially

hostile work environment); Hall v. Gus Constr. Co., 842 F.2d 1010,

1013-15 (8th Cir. 1988) (three female “flag persons” proved sex-

ually hostile environment perpetrated by male road construction

crew); Brand v. Comcast Corp. , 302 F.R.D. 201, 207 (N.D. Ill. 2014)

(challenge to racially hostile environment in telecommunications

facility); Velez v. Novartis Pharm. Corp., 244 F.R.D. 243 (S.D.N-Y.

2007) (female sales employees alleged hostile work environment

and other gender based claims against national pharmaceutical

company); Smith v. Nike Retail Servs., 234 F.R.D. 648 (N.D. Il.

2006) (18 African-American retail workers alleged racially hostile

work environment on behalf of class employed in Chicago area

stores); Jenson v. Eveleth Taconite Co., 824 F. Supp. 847, 879-87

(D. Minn. 1993) (class of female workers in taconite mining facil-

ity established that “sexualized” work environment was objec-

tively hostile); Sellars v. CRST Expedited, Inc., No. C15-117, 2017

The mutually corroborating testimony of co-workers

can be critical to plaintiffs’ ability to meet their burden

of proving that the alleged harassing conduct was not

isolated or sporadic,® can illuminate the context of such

behavior,’ and can establish why the conduct should be

deemed objectively harassing to a reasonable person.®

For example, if a manager regularly propositions fe-

male subordinates behind closed doors, joint legal ac-

tion can empower victims to bring the harassing

conduct to light and overcome a “he said/she said” de-

fense that is often fatal in individual actions.

When workers act together to expose and prove

discrimination or harassment, their joint efforts create

WL 1193730 (N.D. Iowa 2017) (group of female truck driver train-

ees challenging failure to prevent sexual harassment by male lead

drivers during long-haul road trips).

® Ellis, 742 F.3d at 322 (“evidence offered both by the black

officers and by other witnesses indicated that racist comments

were made without objection in a group setting on a near daily

basis”); Jenson, 824 F. Supp. at 879 n.78 (“Numerous witnesses

testified about the presence of visual, verbal and physical refer-

ences to sex and sexual relations... . the uniformity with which

they discussed the sexualized nature of the work place convinces

the Court that the work place was sexualized”).

’ Ellis, 742 F.3d at 320 (underscoring the importance of “con-

text” in evaluating the objective severity of daily racial remarks

in case brought by five African-American corrections officers).

8 Jackson v. Quanex Corp., 191 F.3d 647, 661 (6th Cir. 1999)

(reversing directed verdict for employer where court excluded tes-

timony of African-American co-workers that “certainly mat-

tered” as to whether the workplace was “objectively hostile”);

Sandoval v. Am. Bldg. Maint. Indus., 578 F.3d 787, 802 (8th Cir.

2009) (evidence of other incidents of harassment is “highly pro-

bative of the type of workplace environment [plaintiff] was sub-

jected to”).

economies of scale. This Court has repeatedly recog-

nized the importance of concerted actions in providing

legal redress for inequities that may be too time- and

resource-intensive to realistically challenge through

isolated individual claims. See, e.g., Amchem Prods.,

Inc. v. Windsor, 521 U.S. 591, 617 (1997); Hoffman-La

Roche, 493 U.S. at 170; Deposit Guar. Natl Bank v.

Roper, 445 U.S. 326, 339 (1980). Without the right to

challenge discrimination through concerted legal ac-

tion, many meritorious civil rights claims will never be

pursued at all, for reasons unrelated to their merits.

Especially for low-wage workers, the amount of poten-

tial recovery in an employment case is often so small,

and the costs of litigation so high, that pursuing an in-

dividual claim would be economically irrational. See

Jarvaise v. Rand Corp., 212 F.R.D. 1, 4 (D.D.C. 2002)

(noting in suit alleging sex discrimination in pay,

“[wlithout class certification, there could be ... a sig-

nificant number of individuals deprived of their day in

court because they are otherwise unable to afford in-

dependent representation.”). Many workers also lack

knowledge about the full range of protections afforded

by anti-discrimination laws or which particular em-

ployer practices or policies run afoul of those laws, and

cannot even begin to address any violation of those

rights absent notice from co-workers or a court that a

group legal challenge has been initiated. See Hoffmann-

La Roche Inc., 493 U.S. at 170 (“These benefits ...

depend on employees receiving accurate and timely no-

tice concerning the pendency of the collective action, so

that they can make informed decisions about whether

to participate”).

Concerted actions, by contrast, allow multiple

plaintiffs to share the costs and burdens of litigation,

which is often key to obtaining redress. See, e.g., Duke

v. Univ. of Tex. at El Paso, 729 F.2d 994, 997 (5th Cir.

1984) (reversing judgment against a discrimination

plaintiff to permit broad discovery in support of a class

certification motion). Such actions can also trigger a

broader inquiry into discrimination, yielding company-

wide evidence that an individual plaintiff is less likely

to uncover. See Suzette M. Malveaux, Clearing Civil

Procedural Hurdles in the Quest for Justice, 37 Ohio

N.U. L. Rev. 621, 631 (2011).

B. Concerted Actions Allay Fears and Re-

duce the Risks of Retaliation.

Concerted actions also help to ameliorate legiti-

mate fears of retaliation, which would otherwise dis-

courage individuals from proceeding alone. Reflecting

on his experience as a civil rights litigator, Judge Rob-

ert Carter observed that in cases “seeking to vindicate

novel rights in the face of majoritarian hostility, the

very ability to proceed required the institution of a

class action” because a “lone plaintiff” may be “ex-

tremely vulnerable to the pressure of intimidation.”

Carter, Federal Rules, at 2186; see also Mullen v. Treas-

ure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir.

1999) (finding class certification requirements satis-

fied where “class members still employed by the [de-

fendant] might be reluctant to file individually for fear

of workplace retaliation”).

Unlike plaintiffs in most consumer or securities

cases, workers who press claims for employment dis-

crimination are uniquely vulnerable to retaliation.

Consequently, many victims of employmert discrimi-

nation are deterred from vindicating their rights, for

fear of losing the weekly paycheck by which they pro-

vide for their families. “A reasonable employee facing

the choice between retaining her job (and paycheck)

and filing a discrimination complaint might well choose

the former.” Burlington N. & Santa Fe Ry. v. White, 548

U.S. 53, 73 (2006). While the law provides a potential

remedy for those who can ultimately prove retaliation,

the prospect of compensation sometime in the future is

cold comfort when an employee is suspended or fired

for asserting his or her rights. See id. (“[A]n indefinite

suspension without pay could well act as a deterrent,

even if the suspended employee eventually received

backpay.”). Moreover, retaliation in the workplace can

be subtle, indirect, and difficult if not impossible to

prove, making the threat of adverse consequences all

the more chilling. Because of their economic vulnera-

bility, low-wage workers face significant obstacles when

they seek to vindicate their rights, including particu-

larly pernicious forms of retaliation.

Concerted legal action permits workers to over-

come these fears and stand together to assert their

rights. “Employment discrimination suits seeking in-

junctive relief are frequently managed as class actions

due to distinctive difficulties with joinder. Prospective

plaintiffs may refuse to identify themselves for fear of

harassment or retaliation by the employer.” McClain v.

Lufkin Indus., Inc., 187 F.R.D. 267, 278 (E.D. Tex.

1999). A worker who must stand alone to confront her

employer and challenge a violation of her civil rights

will be far less likely to do so if she must bear that risk

alone. See, e.g., Mullen, 186 F.3d at 625 (Casino work-

ers “might be unwilling to sue individually or join a

suit for fear of retaliation at their jobs.”).

C. Concerted Actions Ensure Corporate

Transparency and Promote Accounta-

bility.

Employers are less likely to be held accountable

for discrimination when challenged on an individual

basis, especially when strict confidentiality provisions

are in place, as they are in many employment arbitra-

tion agreements. See Malveaux, supra, at 631. The re-

sulting harms to victimized employees and to the

congressional purposes and policies underlying federal

workplace protections are enormous. Individual em-

ployees are often unaware when their rights are vio-

lated, either because their employer has successfully

concealed the discrimination or because it occurs in

patterns that are not recognizable to individual em-

ployees. For example, discrimination that results in

pay disparities is often difficult to detect because pay

decisions are made confidentially and many employers

discourage or outright prohibit employees from dis-

cussing salary. See U.S. Dep’t of Labor, Women’s Bu-

reau, Fact Sheet, Pay Secrecy, 1 (Aug. 2014), https://

www.dol.gov/wb/media/pay_secrecy.pdf (“In 2010, nearly

half of all workers nationally reported that they were

either contractually forbidden or strongly discouraged

from discussing their pay with their colleagues.”). Con-

fidential arbitration decisions also cannot provide

guidance to law-abiding employers who want to com-

ply with civil rights laws in their personnel decisions.

See AAA Employment Arbitration Rules and Media-

tion Procedures, Rule 23 (2009) (“The arbitrator shall

maintain the confidentiality of the arbitration and

shall have the authority to make appropriate rulings

to safeguard that confidentiality, unless the parties

agree otherwise or the law provides to the contrary.”).®

The exposure that accompanies concerted legal

action also helps to deter future wrongdoing by signal-

ing to the market that employment discrimination is

harmful economically and reputationally to the corpo-

rate brand. A federal district court recognized these

benefits when it approved an “imaginative” nationwide

class settlement to resolve allegations that Texaco

pervasively discriminated against African-American

® In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 31-

32 (1991), a case brought by older workers under the ADEA, the

Court considered whether arbitration would lead to “a stifling of

the development of the law” under circumstances far different

from those here. There, the rules at issue allowed for collective

proceedings and required all arbitration awards to be in writing

and made public, with a summary of the award and issues in con-

troversy. Jd. But in the consolidated cases here, one of the three

arbitration clauses requires that arbitration proceedings, “includ-

ing any award made, shall be confidential|[.]” Ernst & Young LLP

v. Morris, No. 16-300, JA 46. The other two invoke the American

Arbitration Association’s rules, for employment arbitration,

quoted above, which mandate confidentiality. NLRB v. Murphy

Oil, No. 16-307, JA at 8, Epic Systems Corp. v. Lewis, No. 16-285,

Petition at 33a.

employees and concealed evidence pertinent to the lit-

igation. Roberts v. Texaco, Inc., 979 F. Supp. 185, 189-

93, 198 (S.D.N.Y. 1997). The court noted that the case

“captured national attention” and “may well have im-

portant ameliorative impact not only at Texaco but in

the corporate context as a whole.” Jd. at 189, 197-98.

iil. MOST WORKERS CANNOT USE KEY CIVIL

RIGHTS LEGAL THEORIES OR OBTAIN

BROAD INJUNCTIVE RELIEF IN THEIR

INDIVIDUAL ACTIONS.

Concerted actions are essential to remedying em-

ployment discrimination, and much important civil

rights jurisprudence has developed in the context of

this group paradigm. Individualized actions, by con-

trast, are poorly equipped to address pervasive and en-

trenched discrimination. They preclude workers from

using three major tools for identifying and remedying

workplace discrimination.

A. Disparate Impact Theory

Disparate impact theory — a cornerstone of equal

employment jurisprudence for more than four decades

— targets facially neutral workplace practices that dis-

pruportionately burden members of a protected group

without legal justification. In addition to Title VI, em-

ployment discrimination claims under the Americans

with Disabilities Act, Raytheon Co. v. Hernandez, 540

U.S. 44 (2003), and the Age Discrimination in Employ-

ment Act, Smith v. City of Jackson, 544 U.S. 228 (2005),

may also use disparate impact analysis.

Disparate impact cases have played a powerful

role in making employment opportunities available to

members of groups unjustifiably excluded by archaic

employment rules, tests unrelated to job performance,

and subjective criteria ised by public and private em-

ployers.’® The disparate impact theory of discrimina-

tion continues to be of vital importance today."

0 See, e.g., Dothard, 433 U.S. at 331-32 (striking down Ala-

bama’s height and weight requirements for correctional coun-

selors that disproportionately excluded women and were not

job-related); Albemarle Paper Co. , 422 U.S. at 405 (successful chal-

lenge to job seniority rules and employment tests that locked

African-American workers into lower paying positions in paper

mill); Rowe v. GM Corp., 457 F.2d 348 (5th Cir. 1972) (court en-

joined subjective transfer/promotion system at auto assembly

plant which resulted in disparate impact on African-American

employees).

1 See, e.g., Ernst v. City of Chicago, 837 F.3d 788, 805 (7th

Cir. 2016) (female applicants for paramedic positions proved that

physical abilities test had a disparate impact that was not job re-

lated); Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 117 (4th

Cir. 2013) (female store managers may properly challenge subjec-

tive compensation policy under disparate impact theory); Houser

v. Pritzker, 28 F. Supp. 3d 222 (S.D.N.Y. 2014) (challenge by Black

and Latino applicants to use of arrest records as screening device

for temporary U.S. census positions); McReynolds v. Merrill Lynch,

672 F.3d 482, 491 (7th Cir. 2012) (disparate impact challenge to

account distribution and teaming policies that adversely affected

African-American brokers); United States v. City of New York, 637

Disparate impact claims are “typically” brought

as class actions, 1 Lindemann, Grossman & Weirich,

Employment Discrimination Law 3-3 (5th ed. 2012)

(hereinafter “Lindemann, Empl. Discrim. Law”), or by

groups of workers, see, e.g., Chin v. Port Auth. of N.Y. &

N.dJ., 685 F.3d 135 (2d Cir. 2012); Maldonado v. City of

Altus, 433 F.3d 1294, 1303-07 (10th Cir. 2006). Dispar-

ate impact claims for a single individual are very rare,

and are rarely successful.’* As the Tenth Circuit long

ago observed, “discriminatory impact cannot be estab-

lished where you have just one isolated decision.” Coe

v. Yellow Freight Sys., 646 F.2d 444, 451 (10th Cir.

1981).

F. Supp. 2d 77, 131-32 (E.D.N.Y. 2009) (invalidating fire depart-

ment’s written examinations that had an unjustified disparate

impact on African-American and Latino applicants).

See, e.g., Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033,

1041 (2d Cir. 1993) (female plaintiffs comparison using seven

male employees insufficient to meet statistical burden to estab-

lish disparate impact); Young v. Covington & Burling LLP, 846

F. Supp. 2d 141, 160-61 (D.D.C. 2012) (plaintiff's statistical evi-

dence failed to demonstrate that law firm promotion policy had a

disparate impact on African Americans); Hankins v. Best Buy Co.,

No. 10-cv-4508, 2011 WL 6016233, at *8 (N.D. Lil. Dec. 2, 2011)

(individual disparate impact claim dismissed because the “com-

plaint must also allege that individuals other than the plaintiff

were affected by the facially neutral policy”); Coopersmith v.

Roudebush, 517 F.2d 818, 820-21 (D.C. Cir. 1975) (single plaintiff

failed to demonstrate that legal experience requirement had dis-

parate impact). But see Gonzales v. City of New Braunfels, 176

F.3d 834, 839 n.26 (5th Cir. 1999) (“In the ADA context, a plaintiff

may satisfy the second prong of his prima facie case by demon-

strating an adverse impact on himself rather than on an entire

group.”).

The evidence in disparate impact cases “usually

focuses on statistical disparities, rather than specific

incidents, and on competing explanations for those dis-

parities.” Watson v. Fort Worth Bank & Trust, 487 U.S.

977, 987 (1988). This Court has underscored the de-

manding nature of the necessary statistical proof, as

well as the need to establish a causal link between the

disparity and the challenged emp!oyment practice. See

Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 650-59

(1989); Watson, 487 U.S. at 993-99; see also Meacham

uv. Knolls Atomic Power Lab. , 554 U.S. 84, 101-02 (2008).

For this reason, broad discovery of workforce data

is essential for plaintiffs to meet their burden in a dis-

parate impact case, particularly since pertinent infor-

mation is generally within the exclusive control of the

defendant. This Court has recognized this need, and

has underscored that “liberal civil discovery rules give

plaintiffs broad access to employers’ records in an ef-

fort to document their claims.” Wards Cove, 490 U.S.

at 657 (addressing the suggestion that the Title VII

disparate impact causation requirement was “unduly

burdensome”). The scope of discovery necessary to gen-

erate these statistical analyses is generally not availa-

ble in individual actions. See, e.g., Woodward v. Emulex

Corp., 714 F.3d 632, 636 (1st Cir. 2013) (in individual

age discrimination action, no abuse of discretion when

discovery limited to 21 sales workers); see generally 2

Lindemann, Empl. Discrim. Law at 24-25 (“Different

discovery rules may apply in class actions, as a class

suit by definition involves persons and circumstances

beyond the particular named plaintiff”).

Even where discovery is available in an individual

proceeding, when analyzing a single employment deci-

sion there is a significant risk that the “relevant data

base [may be] too small to permit any meaningful sta-

tistical analysis.” Watson, 487 U.S. at 1000; see, e.g.,

Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d 980, 990 (8th

Cir. 2011) (sample of six job applicants too small for

meaningful statistical analysis); 2 Lindemann, supra,

at 35-75 (“Courts have recognized that statistical evi-

dence often is unreliable when the sample size is

small.”). Put simply, individuals who are forced to pro-

ceed alone will have a hard time making out a dispar-

ate impact claim. See Elizabeth Tippett, Robbing a

Barren Vault: The Implications of Dukes v. Wal-Mart

for Cases Challenging Subjective Employment Prac-

tices, 29 Hofstra Lab. & Emp. L.J. 433, 443-44 (2012)

(“Although disparate impact claims are available to in-

dividual plaintiffs, such claims are rarely successful.

This is largely a function of the evidentiary rigors of a

disparate impact claim, consisting of aggregate statis-

tics showing that an employer’s facially neutral prac-

tices had a disproportionately adverse impact on a

protected group.”).

B. Pattern or Practice Theory

Individualized adjudication is similarly not com-

patible with the pattern-or-practice method of proof. A

distinctive feature of employment discrimination juris-

prudence, pattern-or-practice claims have been recog-

nized as an essential tool in combating pervasive

workplace discrimination and providing “make whole

relief” to victims. See Int'l Bhd. of Teamsters v. United

States, 431 U.S. 324, 336 n.16 (1977) (observing the

necessity of pattern-or-practice litigation to address

discrimination that is “repeated, routine or of a gen-

eralized nature”); see also EEOC uv. Sheil Oil Co., 466

U.S. 54, 69 (1984) (noting that the pattern-or-practice

mode! is “essential if the purposes of Title VII [are] to

be achieved”). This Court reaffirmed the availability of

the Teamsters pattern-or-practice method of proof in

class action cases in Walmart Stores, Inc. v. Dukes, 564

U.S. 338, 352 n.7 (2011).

Pattern-or-practice claims are grounded in this

Court’s recognition that “[iJn many cases the only

available avenue of proof is the use of racial statistics

to uncover clandestine and covert discrimination by

the employer or union involved.” Teamsters, 431 U.S.

at 339-40 n.20 (quoting United States v. Ironworkers

Local 86, 443 F.2d 544, 551 (9th Cir. 1971)). But numer-

ous circuits have held that the pattern-or-practice

method of proof is not available in individual or multi-

plaintiff cases. See, e.g., Chin, 685 F.3d 135; Davis v.

Coca-Cola Bottling Co., 516 F.3d 955, 967-69 (11th Cir.

2008); Bacon v. Honda of Am. Mfg., 370 F.3d 565 (6th

Cir. 2004); Lowery v. Circuit City Stores, Inc., 158 F.3d

742, 761 (4th Cir. 1998), vacated on other grounds, 527

U.S. 1031 (1999).

The pattern-or-practice framework not only al-

lows, but requires, courts to step back and assess the

universe of an employer's actions as a whole. Only

through this broader lens can widespread discrim-

ination be uncovered and evaluated. In individual

adjudication, however, workers are less able to avail

themselves of this tool.

C. Systemic Injunctive Relief

Systemic injunctive relief — another critical tool

for dismantling discriminatory conditions — is also or-

dinarily unavailable in individual cases. Federal Rule

of Civil Procedure 23 provides the vehicle for a gener-

ally applicable and efficient class-wide remedy, result-

ing in cessation of the discriminatory practice and,

where appropriate, additional equitable remedies for

class members. However, absent class certification,

courts often refrain from granting relief that extends

beyond the harms suffered by the individual plaintiffs.

This Court has held that “the scope of injunctive

relief is dictated by the extent of the violation estab-

lished.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979);

see also Sharpe v. Cureton, 319 F.3d 259, 273 (6th Cir.

2003) (“While district courts are not categorically pro-

hibited from granting injunctive relief benefitting an

entire class in an individual suit, such broad relief is

rarely justified.”); Hernandez v. Reno, 91 F.3d 776, 781

(5th Cir. 1996) (injunction can apply only to the named

plaintiff until class is certified); Marshall v. Goodyear

Tire & Rubber Co., 554 F.2d 730, 733 (5th Cir. 1977) (in

ADEA case for individual termination, “nationwide or

companywide injunction is appropriate only when the

facts indicate a company policy or practice in violation

of the statute”).

In Lowery v. Circuit City Stores, Inc., a unanimous

jury found that Circuit City had engaged in a pattern

or practice of racial discrimination, and the district

court ordered broad injunctive relief, including the cre-

ation of new procedures to ensure nondiscriminatory

promotion. 158 F.3d at 761. However, on appeal, the

Fourth Circuit held that because the district court had

declined to certify a class, the plaintiffs could not use

evidence of systematic discrimination under the Jeam-

sters framework to prove instances of individual dis-

crimination. Id. (citing Teamsters, 431 U.S. at 324).

Accordingly, the court granted relief to one of the

named plaintiffs, but vacated all other equitable relief,

including an injunction requiring the employer to pro-

mote employees “without regard to their race.” Lowery,

158 F.3d at 766-67. The lack of class certification forced

the court to disregard a finding of pervasive discrimi-

nation, thwarting the plaintiffs’ effort to fully vindicate

the purposes of Title VII. Jd. at 766.

* * *

Concerted actions in federal courts have estab-

lished key legal precedents essential to our nation’s

progress toward equal opportunity. These precedents

give full meaning to our antidiscrimination statutes

and provide clarity for employers who want to comply

with the law. As this Court has recognized, the legisla-

tive purposes that animate our civil rights statutes

require “the principled application of standards con-

sistent with those purposes,” Albemarle, 422 U.S. at 417,

and “[i]mportant national goals would be frustrated by

a regime of discretion that ‘produce[d] different results

for breaches of duty in situations that cannot be dif-

ferentiated in policy,’” id. (quoting Moragne v. States

Marine Lines, 398 U.S. 375, 405 (1970)). Allowing man-

datory individual arbitration to displace the federally-

guaranteed right to concerted legal action would create

just such a regime. It would also deprive most employ-

ees of the kind of evidence that is necessary to chal-

lenge widespread, institutional discrimination and

would make it difficult or impossible to secure broad-

based injunctive relief. Under such a piecemeal regime,

workers would be far less effective in removing arbi-

trary and invidious discrimination from the workplace.

——_—_—_—_¢

CONCLUSION

For the foregoing reasons, the NLRB’s and em-

ployees’ positions should be accepted and the rulings

of the Seventh and Ninth Circuits should be affirmed,

while the Fifth Circuit’s ruling should be reversed.

Respectfully submitted,

SHERRILYN [FILL JOCELYN D. LARKIN

Director-Counsel LINDSAY NAKO

JANAI NELSON IMPACT FUND

SAMUEL SPITAL 125 University Avenue

RAYMOND AUDAIN Suite 102

Counsel of Record Berkeley, CA. 94710

NAACP LEGAL DEFENSE & (510) 845-3473

EDUCATIONAL FUND, INC.

40 Rector Street, 5th Floor

New York, NY 10006

(212) 965-2200

raudain@naacpldf.org

Coty MONTAG JOSEPH M. SELLERS

KYLE BARRY CHRISTINE WEBBER

NAACP LEGAL DEFENSE & COHEN MILSTEIN SELLERS

EDUCATIONAL FUND, INC. & TOLL, PLLC

1444 I Street NW 1100 New York Avenue NW,

Washington, DC 20005 5th Floor

(202) 682-1300 Washington, DC 20005

(202) 408-4600

August 16, 2017

A-1

APPENDIX A

LIST OF ADDITIONAL AMICI

AARP is a nonprofit, nonpartisan organization

dedicated to fulfilling the needs and representing the

interests of people age fifty and older. AARP fights to

protect the financial security, health, and well-being of

older persons. AARP’s charitable affiliate, AARP Foun-

dation, creates and advances effective solutions that

help low-income individuals age fifty and older secure

the essentials. AARP and AARP Foundation combat

age and disability-based employment discrimination

against older workers, including through participation

as amici curiae in state and federa! courts. See e.g., Ty-

son Foods, Inc. v Bouaphakeo, 136 S. Ct. 1036 (2016);

Meacham v. Knolls Atomic Power Lab., 554 U.S. 84

(2008); Spector v. Norwegian Cruise Line Ltd., 545 U.S.

119 (2005); Smith v. City of Jackson, 544 U.S. 228

(2005).

The American Civil Liberties Union (ACLU)

is a nationwide, nonprofit, nonpartisan organization

with over 1.6 million members dedicated to the princi-

ples of liberty and equality embodied in the Constitu-

tion and this nation’s civil rights laws. Since its

founding in 1920, the American Civil Liberties Union

has appeared in numerous cases before this Court,

both as counsel representing parties and as amicus cu-

riae. The ACLU and its state affiliates advance the

cause of civil liberties and civil rights through advo-

cacy and litigation, including class action litigation,

lawsuits on behalf of multiple plaintiffs, and other

collective legal actions. The ACLU has served and is

A-2

currently serving as counsel in numerous class action

lawsuits that have been critical to obtaining redress

for constitutional violations and ensuring that federal

and state laws and government policies comport with

the Constitution.

Asian Americans Advancing Justice - Asian

Law Caucus (ALC) was founded in 1972 with a mis-

sion to promote, advance, and represent the legal and

civil rights of Asian and Pacific Islanders, with a par-

ticular focus on low-income members of those commu-

nities. ALC is part of a national affiliation of Asian

American civil rights groups, with offices in Los Ange-

les, Chicago, Washington DC, and Atlanta. ALC’s advo-

cacy includes legal counseling, direct services, and

class-action litigation for low-wage immigrant workers

facing a wide range of workplace issues, including race

and national origin discrimination, retaliation, and

wage and hour problems. ALC also regularly provides

representation for workers organizing collectively to

change and improve their workplace conditions.

Asian Americans Advancing Justice - Los

Angeles (Advancing Justice-LA) is the nation’s

largest legal and civil rights organization for Asian

Americans, Native Hawaiians, and Pacific Islanders

(NHPI). Advancing Justice-LA serves more than

15,000 individuals every year, including Asian Ameri-

cans and NHPIs who lack effective access to the courts.

Through direct services, impact litigation, policy advo-

cacy and capacity building, Advancing Justice-LA fo-

cuses on vulnerable members of Asian American and

NHPI communities, while also building a strong voice

A-3

for civil rights and social justice. Advancing Justice-LA

has a long history of working to ensure that members

of our communities have effective access to courts. We

have represented vulnerable members of our commu-

nities in federal courts on a broad range of issues, in-

cluding language rights and language access, workers’

rights, consumer protection, education rights, housing

rights, voting rights, health care, and public benefits,

among others.

The California Women’s Law Center (CWLC)

is a statewide, nonprofit law and policy center dedi-

cated to advancing the civil rights of women and girls.

CWLC works to ensure, through systemic change, that

life opportunities for women and girls are free from un-

just social, economic, and political constraints. CWLC

acknowledges the importance of class action litigation

to effecting widespread change, and has acted as coun-

sel in a number of civil rights class actions, including

cases challenging unfair educational opportunities for

female students at K-12 schools under Title IX.

The Center for Reproductive Rights is a global

advocacy organization that uses the law to advance re-

productive freedom, an essential predicate of gender

equality and full participation in social and economic

life. In the United States, the Center’s work focuses on

protecting and expanding the constitutional, statutory,

and human rights that guarantee reproductive auton-

omy, which includes the right to make decisions about

family life free from discrimination in the workplace or

elsewhere. Since its founding in 1992, the Center has

been actively involved in nearly all major litigation in

A-4

the U.S. concerning reproductive rights, in both state

and federal courts. As a rights-based organization, the

Center has a vital interest in ensuring that individuals

and groups endeavoring to exercise their rights have

robust tools to achieve redress in the courts, including

the ability to seek class and systemic relief.

Since 1969, Centro Legal de la Raza (Centro

Legal) has provided legal aid services to low-income,

predominantly Spanish-speaking residents of the San

Francisco Bay Area. Centro Legal assists several thou-

sand clients annually, including numerous class ac-

tions on behalf of immigrant and other low-income

workers. Centro Legal therefore has a significant in-

terest in protecting concerted activity by workers to

address workplace violations.

The Civil Rights Education and Enforcement

Center (CREEC) is a nationa! nonprofit membership

organization whose mission is to defend human and

civil rights secured by law, including laws prohibiting

discrimination in employment. CREEC’s efforts to de-

fend human and civil rights extend to all walks of life,

and CREEC and its members have an interest in en-

suring that our nation’s civil rights laws can be vigor-

ously and effectively enforced through individual and

collective action.

Disability Rights Advocates (DRA) is a non-

profit public interest legal center that specializes in

high impact civil rights litigation and other advocacy

on behalf of persons with disabilities throughout the

United States. With offices in Berkeley, California and

A-5

New York, New York, DRA works to end discrimination

in areas such as access to public accommodations, pub-

lic services, employment, transportation, education,

technology and housing. In Bates v. UPS, DRA repre-

sented a nationwide class of UPS employees and appli-

cants with hearing loss who had been categorically

excluded from certain positions as a result of the com-

pany’s use of the Department of Transportation hear-

ing standard as a threshold qualification for driving

vehicles weighing 10,000 pounds or less. DRA co-

founder Laurence W. Paradis successfully argued the

case on appeal to the Ninth Circuit.

The Disability Rights Education & Defense

Fund (DREDF) is a national nonprofit law and policy

organization dedicated to protecting and advancing

the civil rights of people with disabilities. Based in

Berkeley, California, DREDF has remained board- and

staff-led by people with disabilities since its founding

in 1979. DREDF pursues its mission through educa-

tion, advocacy and law reform efforts, and is nationally

recognized for its expertise in the interpretation of fed-

eral disability civil rights laws. As part of its mission,

DREDF works to ensure that people with disabilities

have the legal protections, including effective legal

remedies, necessary to vindicate their right to be free

from discrimination. The ADA and other disability civil

rights laws build on and explicitly incorporate the ex-

pansive remedies of other statutory nondiscrimination

protections. DREDF and the disability community it

represents thus have an interest in the issues pre-

sented by this case.

A-6

The Equal Justice Society (EJS) is transform-

ing the nation’s consciousness on race through law, so-

cial science, and the arts. A national legal organization

focused on restoring constitutional safeguards against

discrimination, EJS’s goal is to help achieve a society

where race is no longer a barrier to opportunity. Spe-

cifically, EJS is working to fully restore the constitu-

tional protections of the Fourteenth Amendment and

the Equal Protection Clause, which guarantees all cit-

izens receive equal treatment under the law. We use a

three-pronged approach to accomplish these goals,

combining legal advocacy, outreach and coalition build-

ing, and education through effective messaging and

communication strategies. Our legal strategy aims to

broaden conceptions of present-day discrimination to

include unconscious and structural bias by using cog-

nitive science, structural analysis, and real-life experi-

ence.

Founded in 1974, Equal Rights Advocates

(ERA) is a national non-profit legal organization ded-

icated to protecting and expanding economic and edu-

cational access and opportunities for women and girls.

ERA has litigated class action and other high-impact

cases related gender discrimination and civil rights, in-

cluding Geduldig v. Aiello, 417 U.S. 484 (1974) and

Richmond Unified School District v. Berg, 434 U.S. 158

(1977). ERA has appeared as amicus curiae in numer-

ous Supreme Court cases involving the interpretation

of anti-discrimination laws, including Meritor Savings

Bank, FSB v. Vinson, 477 U.S. 57 (1986); Harris v.

Forklift Systems, Inc., 510 U.S. 17 (1993); Burlington

A-7

Industries v. Ellerth, 524 U.S. 742 (1998); and Burling-

ton Northern and Santa Fe Ry. Co. v. White, 126 S.Ct.

2405 (2006). Over the course of its forty-year history,

ERA has frequently advocated on behalf of women

working in male-dominated industries who have suf-

fered egregious discrimination through both facially

discriminatory and facially neutral policies and prac-

tices. ERA has a strong interest in ensuring that

women retain the ability to fairly combat discrimina-

tion in the workplace.

Human Rights Campaign (HRC), the largest

national lesbian, gay, bisexual, and transgender politi-

cal organization, envisions an America where lesbian,

gay, bisexual and transgender people are ensured of

their basic equal rights, and can be open, honest and

safe at home, at work and in the community.

Justice in Aging’s principal mission is to protect

the rights of low-income older adults. Through advo-

cacy, litigation, and the education and counseling of le-

gal aid attorneys and other local advocates, we seek to

ensure the health and economic security of older adults

with limited income and resources. Since 1972, the

Justice in Aging (formerly the National Senior Citizens

Law Center) has worked to promote the independence

and well-being of low-income elderly and persons with

disabilities, especially women, people of color, and

other disadvantaged minorities. We work tirelessly to

preserve and strengthen Medicaid, Medicare, Socia!

A-8

Security and SSI, benefits programs that allow low-

income older adults to live with dignity and independ-

ence. In addition, we seek to ensure their access to the

courts and to keep the courts open for justice.

Formed in 1972, Lambda Legal Defense and

Education Fund, Inc. is the nation’s oldest and larg-

est nonprofit legal organization committed to achiev-

ing full recognition of the civil rights of lesbian, gay,

bisexual, and transgender (“LGBT”) people and every-

one living with HIV through impact litigation, educa-

tion, and public policy work. Lambda Legal has served

as counsel of record or amicus curiae in some of the

most important cases regarding the rights of LGBT

people and people living with HIV. See, e.g., Obergefell

v. Hodges, 135 S. Ct. 2584 (2015); United States v.

Windsor, 133 S. Ct. 2675 (2013); Lawrence v. Texas, 539

U.S. 558 (2003); Bragdon v. Abbott, 524 U.S. 624 (1998);

Romer v. Evans, 517 U.S. 620 (1996). Of particular rel-

evance here, for many years, Lambda Legal has been

actively litigating the issue of Title VII’s application to

claims of discrimination on the basis of sexual! orienta-

tion or gender identity. See, eg., Hively v. Ivy Tech

Cmty. Coll., 853 F.3d 339 (7th Cir. 2017) (en banc); Ev-

ans v. Georgia Regl. Hosp., 850 F.3d 1248 (11th Cir.

2017); Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011).

Based on this experience, Lambda Legal has a strong

interest in defending litigants’ access to Article III

courts, an essential venue for adjudicating unsettled

questions regarding the application of federal civil

A-9

rights laws, particularly for people of color, the finan-

cially insecure, and other socially and economically

marginalized groups.

LatinoJustice PRLDEF is a national not for

profit civil rights legal defense fund that engages in

litigation, advocacy, and education to defend the con-

stitutional rights and the equal protection of all Lati-

nos under the law. Since being founded in 1972 as the

Puerto Rican Legal Defense & Education Fund, we

have championed an equitable society through advanc-

ing Latinx civil engagement, cultivating new Latinx

community leaders, and engaging in and supporting

law reform impact litigation efforts across the country

that champion civil rights and equality in the areas of

criminal! justice, education, employment, immigrants’

rights, language rights, redistricting and voting rights.

The Law Foundation of Silicon Valley is a non-

profit agency in San José, California, that provides free

legal services to Santa Clara County residents in need

in the areas of safe and affordable housing, stable

homes for abused and neglected children, and address-

ing a number of other issues including discrimination,

domestic violence, disability rights, and human traf-

ficking. The mission of the Law Foundation is to ad-

vance the rights of under-represented individuals and

families in our diverse community through legal ser-

vices, strategic advocacy, and educational outreach.

The Law Foundation has litigated numerous civil

rights class action cases to advance the cause of justice

for our clients. See, e.g., Lewis et al. v. Siluertree Mohave

Homeowners’ Ass’n et al., No. C 16-03581 WHA (N.D.

A-10

Cal. filed Jun. 24, 2016); Huynh et al. v. Harasz et al.,

14-CV-02367-LHK (N.D. Cal. filed May 22, 2014); Hop-

kins et al. v. Flores et al., No. 1-05-CV-035647 (S.C.C.

Super. Ct. filed Feb. 15, 2005); Rodriguez, et al. v. Santa

Clara Cnty. Dep’t of Social Serv., No. C-97-20934 JW

(N.D. Cal. filed Oct. 27, 1997); and Lopez, et al. v. Wash-

ington Mutual Bank, FA, 302 F.3d 900 (9th Cir. 2002).

The Lawyers’ Committee for Civil Rights Un-

der Law (Lawyers’ Committee) is a tax-exempt,

nonprofit civil rights organization that was founded in

1963 by the leaders of the American bar, at the request

of President John F. Kennedy, in order to mobilize the

private bar in vindicating the civil rights of African

Americans and other racial and ethnic minorities. The

Lawyers’ Committee is dedicated, among other goals,

to eradicating all forms of workplace discrimination af-

fecting racial and ethnic minorities and other disad-

vantaged populations. Since the 1960s, the Lawyers’

Committee has relied on class and concerted actions

under the Civil Rights Act of 1964 and other federal

and state statutes as essential tools for combating un-

lawful discrimination in the workplace. The Lawyers’

Committee has been involved in cases before the

United States Supreme Court involving the interplay

of arbitration clauses and the exercise of rights guar-

anteed by civil mghts laws prohibiting employment

discrimination, including serving as amicus curiae in

AT&T Mobility v. Concepcion, 563 U.S. 333 (2011);

Stolt-Nielsen S.A. v. Animalfeeds International, 559

US. 662 (2010); and Circuit City Stores v. Adams, 532

U.S. 105 (2001).

A-11

The Leadership Conference on Civil and Hu-

man Rights (The Leadership Conference) is a di-

verse coalition of more than 200 national organizations

charged with promoting and protecting the civil and

human rights of all persons in the United States. It is

the nation’s largest and most diverse civil and human

rights coalition. For more than half a century, The

Leadership Conference, based in Washington, D.C., has

led the fight for civil and human rights by advocating

for federal legislation and policy, securing passage of

every major civil rights statute since the Civil Rights

Act of 1957. The Leadership Conference works to build

an America that is inclusive and as good as its ideals.

Towards that end, we have participated as an amicus

party in cases of public importance that will affect the

civil and human rights of many individuals, and, in

particular, the interests of constituencies in The Lead-

ership Conference coalition.

Legal Aid at Work (LAAW), formerly the Legal

Aid Society - Employment Law Center, represents low-

wage workers facing a range of workplace issues, in-

cluding unpaid wages, denials of family and medical

leave and accommodation, wrongful termination, har-

assment, retaliation, and discrimination on the basis

of race, national origin, immigration status, language,

gender, sexual orientation, or disability. LAAW’s cli-

ents — women, people of color, persons with disabilities,

immigrants, and others in low-paying jobs — suffer dis-

crimination, wage and hour violations, unlawful termi-

nation, harassment, threats to health and safety, and

other illegal on-the-job practices. LAAW litigates law

A-12

reform and collective and class actions to change poli-

cies and practices that hinder access to equal employ-

ment opportunities. LAAW has litigated a number of

cases under Title IX of the Education Amendments of

1972, the Americans with Disabilities Act, Title VII of

the Civil Rights Act of 1964, as well as the Fair Labor

Standards Act, among others. Some of LAAW’s recent

cases include: Arias v. Raimondo, 860 F.3d 1185 (9th

Cir. 2017); Guerrero v. California Department of Cor-

rections, 119 F. Supp. 3d 1065 (N.D. Cal. 2015); Ollier

v. Sweetwater Union High School District, 768 F.3d 843

(9th Cir. 2014); and Willits v. City of Los Angeles, 925

F. Supp. 2d 1089 (C.D. Cal. 2013).

Founded in 1968, the Mexican American Legal

Defense and Education Fund (MALDEF) is the

Jeading national civil rights organization representing

the 55 million Latinos living in the United States

through litigation, advocacy, and educational outreach.

MALDEF’s mission is to foster sound public policies,

laws, and programs to safeguard the civil rights of La-

tinos living in the United States and to empower the

Latino community to participate fully in our society.

MALDEF has litigated many cases under state and

federal law to ensure equal treatment of Latinos, in-

cluding many class actions in the areas of education,

employment, immigrant rights, and voting rights.

Since 1973, the National LGBTQ Task Force

has worked to build power, take action, and create

change to achieve freedom and justice for lesbian, gay,

bisexual, transgender, and queer (LGBTQ) people and

A-13

their families. As a progressive social justice organiza-

tion, the Task Force works toward a society that values

and respects the diversity of human expression and

identity and achieves equity for all. Because LGBTQ

and gender non-conforming people — especially

LGBTQ/GNC people of color — face widespread sys-

temic discrimination in employment, legal efforts to

ensure that employees have access to collective action

are a critical piece of our broader efforts to fight for

economic justice.

The National Women’s Law Center (NWLC) is

a non-profit legal advocacy organization dedicated to

the advancement and protection of women’s rights and

opportunities. Since 1972, NWLC has fought for equa!

opportunities and fair treatment for women in all as-

pects of their employment. This includes not only the

right to a workplace that is free from all forms of dis-

crimination and harassment, but also access to effec-

tive means of enforcing that right and remedying such

conduct. NWLC has played a leading role in the pas-

sage and enforcement of federal civil rights laws, in-

cluding through class action and pattern or practice

litigation and in numerous amicus briefs involving sex

and race discrimination in employment before the

United States Supreme Court, federal courts of ap-

peals, and state courts.

Letitia James is the Public Advocate for the

City of New York - the second-highest ranking offi-

cial in New York City government who serves as a

citywide elected ombudsman, legislator, and litigator.

Public Advocate James has advocated for stronger

A-14

anti-discrimination legislation — including the intro-

duction of legislation that prohibits New York City em-

ployers from asking job applicants about their salary

histories. She has also filed amicus briefs in cases in-

volving workplace discrimination on the basis of sex-

ual orientation and criminal records, and she has

issued policy reports on the gender wage gap in New

York City and other topics relevant to workplace dis-

crimination.

Public Advocates, Inc. is a non-profit, public in-

terest law firm and one of the oldest public interest law

firms in the nation. Public Advocates uses diverse liti-

gation and non-litigative strategies to handle exclu-

sively policy and impact cases to challenge the

persistent, underlying causes and effects of poverty

and discrimination. Its work currently focuses on

achieving equality in education, housing, and transpor-

tation; in the past the organization has addressed sys-

temic harms in employment, prisons, consumer rights,

welfare benefits and health care among other issue ar-

eas. Throughout its history, Public Advocates has con-

sistently employed the class action mechanism to

obtain relief on behalf of large numbers of individuals

— sometimes having had classes certified with over a

million members. As such, the organization has a

strong interest in the continued effective functioning

of the class action mechanism in all contexts.

Public Counsel is the largest pro bono law firm

in the nation and the Southern California affiliate of

the Lawyers’ Committee for Civil Rights Under Law.

Its 71 attorneys and 50 support staff — along with over

A-15

5,000 volunteer lawyers, law students, and legal pro-

fessionals — assist more than 30,000 low-income indi-

viduals, families, and community organizations every

year. Public Counsel addresses systemic poverty and

civil rights issues through impact litigation, direct ser-

vices, and policy advocacy. Our practice areas include

veterans’ rights, children’s rights, community develop-

ment, consumers’ rights, immigrants’ rights, and hous-

ing and homelessness.

The Public Interest Law Project (PILP) is a

nonprofit state support center for local legal services

and nonprofit public interest law programs in Califor-

nia. PILP focuses on the areas of affordable housing

and public benefits, including the areas of food, health

care and income support. In all of those areas many of

our clients are frequently employed at workplaces

where concerted activity and collective legal action are

often necessary to protect their civil and economics

right and to assist with efforts to lift them out of pov-

erty.

Public Justice is a nonprofit legal organization

that participates in high-impact litigation throughout

the United States on behalf of low-wage workers,

consumers, and others whose civil rights have been vi-

olated. Public Justice’s Class Action Preservation Pro-

ject conducts research and comments on developments

in the law with the goal of ensuring that those with

relatively little societal power retain access to the civil

justice system and are able to join together to vindicate

their rights.

A-16

The Public Justice Center (PJC), is a non-

profit civil rights and anti-poverty legal services organ-

ization founded in 1985 and based in Baltimore,

Maryland. The PJC has a longstanding commitment to

protecting the rights of low- and moderate-income

workers, consumers, and renters, among others, and

routinely vindicates those rights through representa-

tion in class actions, including cases challenging dis-

criminatory and unlawful labor practices.

Located in Montgomery, Alabama, Southern

Poverty Law Center (SPLC) has provided pro bono

representation to vulnerable populations in the South-

east since 1971. SPLC has litigated or served as ami-

cus curiae in numerous cases to vindicate the rights of

low wage workers, including several class actions chal-

lenging employment discrimination, retaliation, and

human trafficking. SPLC has an interest in this case

because a ruling upholding class action waivers in em-

ployment agreements would adversely impact SPLC’s

future clients.

B-1

APPENDIX B

List of Selected Civil Rights Concerted Actions

AGE DISCRIMINATION CASES

Meacham v. Knolls Atomic Power Lab. , 554 U.S. 84

(2008); No. 1:97-cv-00012-DRH, Dkt. 312 (N.D.N-Y.

May 1, 2009) (after trial, back pay)

Merritt v. Wellpoint, Inc., No. 3:08-cv-272, Dkts. 93,

101 (E.D. Va. Jun. 27, 2011) ($2.6 million)

Williams v. Sprint/United Mgmt. Co., 2007 WL

2694029 (D. Kan. Sept. 11, 2007) ($57 million for 1697

individuals)

DISABILITY DISCRIMINATION CASES

Bates v. UPS, No. C99-2216 THE, Dkt. 647 (N.D.

Cal. Dec 13, 2010) (injunctive relief, $5.8 million for

1000 individuals)

Cookson v. NUMMI, No. C10-02931 CRB, Dkt. 68

(N.D. Cal. Jan. 27, 2012) ($6 million for 500 individu-

als)

Knee v. Henderson, 2001 WL 34395138 (M.D. Pa.

2001) ($2.4 million for 235 individuals)

GENDER DISCRIMINATION CASES

Amochaev v. Citigroup Global Mkts., 2007 WL

484778 (N.D. Cal. Aug. 13, 2008); as described in Curtis-

Bauer v. Morgan Stanley & Co., Inc. , 2008 WL 4667090,

B-2

at *7 (N.D. Cal. Oct. 22. 2008) (injunctive relief, $33

million for 240U women)

Augst-Johnson v. Morgan Stanley & Co., Inc., No.

1:06-cv-01142-CLL (D.D.C. Oct. 26, 2017) (injunctive

relief, $46 million for 2800 women)

Aviles v. BAE Systems Norfolk Ship Repair, Inc.,

No. 2:13-cv-00418, Dkt. 111 (E.D. Va. Feb. 10, 2016);

Dkt. 103-3 (injunctive relief, $3 million for 166 women)

Beavers v. Am. Cast Iron Pipe Co., 164 F. Supp. 2d

1290, 1296 (N.D. Ala. 2001) (injunctive relief, $5 mil-

lion)

Beck v. Boeing Co., No. 2:00-cv-00301-MJP (W.D.

Wash. Oct. 8, 2004) (injunctive relief, $72.5 million for

25,000 women)

Beckmann v. CBS Inc., No. 3:96-cv-01172, 2000

WL 33281052 (D. Minn. 2000) (injunctive relief, $8 mil-

lion for 200 women)

Bellifemine v. Sanofi-Aventis U.S. LLC, 2010 WL

3119374 (S.D.N.Y. Aug. 6, 2010) (injunctive relief, $15.4

million)

Bouman v. Block, 940 F.2d 1211, 1226 (9th Cir.

1991) (after trial, injunctive relief)

Brown v. Medicis Pharm. Corp., No. 13-cv-1345,

Dkt. 52 (D.D.C. July 11, 2016) (injunctive relief, $7.15

million for 225 women)

B-3

Bunch v. Rent-a-Center, 2001 WL 1712351 (W.D.

Mo. 2001) (injunctive relief, $12.25 million for 4600

women)

Butler v. Home Depot, Inc., No. C-94-4335 SI (N.D.

Cal.), https://www.clearinghouse.net/detail.php?id=9471

(injunctive relief, $87.5 million)

Calibuso v. Bank of Am. Corp., 299 F.R.D. 359

(E.D.N.Y. 2014) (injunctive relief, $39 million)

Card v. City of Cleveland, No. 1:08-cv-02325-DAP,

Dkt. 39 (N.D. Ohio July 14, 2011) (back pay)

Carlson v. C.H. Robinson Worldwide, Inc., 2006

WL 2671105 (D. Minn. Sept. 18, 2005); https://www.

clearinghouse.net/chDocs/public/EE-MN-0076-0002. pdf

(injunctive relief, $15 million for 1800 individuals)

Coates v. Farmers Grp. Inc., 2016 WL 5791413

(N.D. Cal. Sept. 30, 2016) (injunctive relief, $4.1 million

for 300 women)

Cronas v. Willis Group Holdings, Ltd., 2011 WL

6778490 (S.D.N.Y. Dec. 19, 2011) (injunctive relief,

$11.6 million for 316 women)

Da Silva Moore v. Publicis Groupe SA, No. 11-cv-

1279, Dkt. 618 (S.D.N.Y. May 20, 2016) ($2.9 million for

100 women)

Duling v. Gristede’s Operating Corp., 2013 WL

3146772 (S.D.N.Y. June 19, 2013) (injunctive relief,

$1.45 million for 600 women, plus fees)

B-4

Easterling v. State of Conn. Dep’t of Corrections,

783 F. Supp. 2d 323 (D. Conn. 2011); No. 3:08-cv-826

(JCH) (D. Conn. 2013); http:/Avww.clearinghouse.net/

chDocs/public/EE-CT-0019-0003.pdf (summary judg-

ment granted, injunctive relief, $1.8 million for 124

women, plus fees)

Ebbert v. Nassau Cty., 2011 WL 6826121, at *1

(E.D.N.Y. Dec. 22, 2011) (injunctive relief, $7 million)

Ellis v. Costco Wholesale Corp., 2014 WL 12641574

(N.D. Cal. May 27, 2014); https://www.clearinghouse.net/

chDocs/public/EE-CA-0302-0009.pdf (injunctive relief,

$8 million)

Estate of Pitre v. W. Elec. Co., Inc., 719 F. Supp. 966

(D. Kan. 1989); aff’d in part, rev'd in part, 975 F.2d 700

(10th Cir. 1992); on remand 1994 WL 132958 (D. Kan.

Mar. 31, 1994) (after trial, $1 million for 80 women)

Hartman v. Powell, 2001 WL 410461 (D.C. Cir.

Mar. 15, 2001) (injunctive relief, $531 million for 1100

women)

Hnot v. Willis Group Holdings Ltd., 2001 WL

36115583 (S.D.N.Y. July, 2001) (injunctive relief, $8.5

million for 180 women, plus fees)

Int'l Union v. Johnson Controls, Inc., 499 U.S. 187

(1991); settlement reported (E.D. Wis. Jan. 19, 1994)

https://www.clearinghouse.net/detail.php?id=10665&

search=source%7Cgeneral%3BcaseName%7Cjohnson

B-5

%20controls%3BcaseCat%7CEE%3Borderby%7Cfiling

Year%3B (after Supreme Court ruling, back pay)

Jarvaise v. Rend Corp., 212 F.R.D. 1 (D.D.C. 2002);

Jarvaise v. Rand Corp., No. 1:96-cv-02680-RWR, Dkt.

253 (D.D.C., Dec. 18, 2007) (injunctive relief, $65/class

member per month for 41 months)

Jensen v. Eveleth Taconite Co., 824 F. Supp. 847 (D.

Minn. 1993); damages rulings vacated, remanded, 130

F.3d 1287 (8th Cir. 1997) (after trial, injunctive relief,

damages)

Kraszewski v. State Farm Gen. Ins. Co., 912 F.2d

1182, 1183 (9th Cir. 1990) (after trial, back pay)

Kyriazi v. W. Elec. Co., 647 F.2d 388 (3d Cir. 1981)

(after trial, injunctive relief, back pay)

Martens v. Smith Barney, Inc., 181 F.R.D. 243

(S.D.N.Y. 1998); 1998 WL 1661385 (S.D.N.Y. July 28,

1998); https://www.clearinghouse.net/detail.php?id=

10620&search=source%7Cgeneral%3 BcaseName%7

Csmith%20barney%3BcaseCat%7CEE%3Borderby%7

CfilingYear%3B ($150 million for 20,000 women)

Orlowski v. Dominick’s Finer Foods, Inc., 1999 WL

1823288 (N.D. Ill. 1999); https://Awww.clearinghouse.net/

chDocs/public/EE-IL-0290-0001.pdf (injunctive relief,

$7.65 million, plus fees)

Palmer v. Combined Ins. Co., No. 1:01-cv-09502,

Dkts. 80, 111 (N.D. Il. Jan. 12, 2005); https://www.

B-6

clearinghouse.net/ch Docs/public/EE-IL-0284-0005. pdf;

https://www.clearinghouse.net/chDocs/public/EE-IL-

0284-0002. pdf (injunctive relief, $8.5 million)

Pan v. Qualcomm Inc., No. 3:16-cv-01885-JLS-

DHB (S.D. Cal. July 31, 2017); https://scholar.google.

com/scholar_case?case=2797920729459864432&hl=en

&as_sdt=6&as_vis=1&oi=scholarr (injunctive relief, $19.5

million for 3300 women)

Schaefer v. Tannian, 895 F. Supp. 175 (E.D. Mich.

1995) (after trial, injunctive relief, $10.8 million)

Shores v. Publix Super Mkts, Inc., 1997 WL 714787

(M.D. Fla. Jan. 27, 1997); https://digitalcommons.ilr.

cornell.edu/cgi/viewcontent.cgi?article=1146&context=

condec (injunctive relief, $63.5 million, plus fees)

Stagi v. Nat'l R.R. Passenger Corp. , 880 F. Supp. 2d

564 (E.D. Pa. 2012) (injunctive relief, $1.99 million for

5400 women)

Stender v. Lucky Stores, 803 F. Supp. 259 (N.D.

Cal. 1992); https://Awww.clearinghouse.net/chDocs/not_

public/EE-CA-0276-0001.pdf (after trial, injunctive re-

lief, $80 million)

Vasich v. City of Chicago, 2013 WL 6730106 (N.D.

Ill. Dec. 20, 2013) (injunctive relief, $2 million)

Velez v. Novartis Pharm. Corp., 2010 WL 4877852

(S.D.N.Y. Nov. 30, 2010) (after trial, injunctive relief,

$152.5 million for 6000 women)

B-7

Warnell v. Ford Motor Co., No. 98-C-1503, Dkt. 159

(N.D. Til. Nov. 7, 2000); 2000 WL 33232272 (N.D. II.

2000) ($9 million plus fees)

Wellens v. Daiichi Sankyo, Inc., No. 3:13-cv-0058

(N.D. Cal. 2015) (injunctive relief, $8.2 million)

Wetzel v. Liberty Mut. Ins. Co.,508 F.2d 239 (3d Cir.

1975) (after trial, back pay)

Womack v. Dolgencorp, No. 06-cv-465, Dkt. 214

(N.D. Ala. Apr. 6, 2012); http://digitalcommons.ilr.cornell.

edu/cgi/viewcontent.cgi?article=1489&context=condec

(injunctive relief, $18.75 million plus fees)

Women’s Comm. For Equal Emp’t Opportunity

(WC=EO) v. Nat'l Broad. Co., 76 F.R.D. 173 (S.D.N-Y.

1977) (injunctive relief, $1.4 million plus fees)

RACE DISCRIMINATION CASES

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)

(after trial, back pay)

Bert v. AK Steel Corp., 2008 WL 4693747 (S.D.

Ohio Oct. 23, 2008) (injunctive relief, $3400 to each

class member plus fees)

Brand v. Comcast Corp., No. 11-cv-8471 (N.D. Ill.

June 15, 2016) (injunctive relief, $7.2 million for 385

individuals)

Brown v. Yellow Transp., No. 08-5908, Dkt. 181

(N.D. Ill. Sept. 25, 2012); https://www.clearinghouse.

B-8

net/chDocs/public/EE-IL-0329-0004.pdf (consent decree)

($11 million for 350 individuals)

Buttram v. UPS, 1999 U.S. Dist. LEXIS 23556

(N.D. Cal. Apr. 14, 1999) (injunctive relief, $12 million)

Cogdell v. Wet Seal, Inc., 2013 WL 12134045 (C.D.

Cal. Dec. 9, 2013); http://digitalcommons.ilr.cornell.edu/

cgi/viewcontent.cgi?article=1282&context=condec (in-

junctive relief, $7.5 million)

Cokely v. NY Convention Ctr, No. 00 Civ.

4637(CBM), Dkt. 150 (S.D.N_Y. Aug. 21, 2006); https://

www.clearinghouse.net/chDocs/public/EE-N Y-0205-0002.

pdf (injunctive relief, $8.4 million)

Commonwealth of Pa. v. Local 542, Int’l Union of

Operating Eng’rs, 1982 WL 770 (E.D. Pa. Dec. 15, 1982)

(after trial, $1.5 million for 599 individuals)

Cook v. Howard Indus., Inc. , 2013 WL 943664 (S.D.

Miss. Mar. 11, 2013) ($3 million, plus fees)

Creighton v. Metro. Life Ins. Co., No. 1:15-cv-08321-

WHP, Dkts. 101-1, 138 (S.D.N-Y. June 27, 2017) ($32.5

million)

Curtis-Bauer v. Morgan Stanley, 2008 WL

4667090 (N.D. Cal. Oct. 22, 2008) (injunctive relief,

$16.5 million for 1300 individuals)

Davis v. Eastman Kodak Co., Nos. 04-CV-6098, 07-

CV-6512, Dkt. 351 (W.D.N.Y. Sept. 3, 2010) (injunctive

relief, $21.4 million for 3000 individuals)

B-9

Doe v. Mulcahy, Inc., No. 08-306, Dkt.156 (D. Minn.

Jan. 11, 2010) (injunctive relief, $6 million)

Domingo v. NE Fish Co., 727 F.2d 1429 (9th Cir.

1984) (after trial, back pay)

Estrada v. Bashas’, Inc., No. CIV 02-0591-DJH,

Dkt. 360 (D. Ariz. April 24, 2015) ($6.5 million for

12,000 individuals)

Franks v. Bowman Transp., 424 U.S. 747 (1976) (af-

ter trial, back pay)

Gonzales v. Pritzker, No. 10-3105, Dkt. 377

(S.D.N.Y. Sept. 20, 2016); https://Awww.clearinghouse.

net/chDocs/public/EE-NY-0254-0008.pdf; https://www.

clearinghouse.net/chDocs/public/EE-N Y-0254-0010.pdf

(injunctive relief, $5 million)

Griggs v. Duke Power Co., 1972 WL 215, at *1

(M.D.N.C. Sept. 25, 1972) (after trial, injunctive relief)

Hammon v. Barry, 752 F. Supp. 1087, 1089 (D.D.C.

1990) (injunctive relief, $3.5 million for 180 individu-

als)

Haynes v. Shoney’s, Inc., 1993 WL 19915 (N.D. Fla.

Jan. 25, 1993) (injunctive relief, $105 million)

Hopson v. Mayor & City Council of Baltimore, No.

CIV.A. AMD-04-3842, Dkt. 306 (D. Md. June 23, 2009)

(injunctive relief, $2.5 million for 15 plaintiffs)

Huguley v. GM Corp., 128 F.R.D. 81, 82 (E.D. Mich.

1989), aff'd, 925 F.2d 1464 (6th Cir. 1991), aff’d, 999

F.2d 142 (6th Cir. 1993) (injunctive relief, $1.6 million)

B-10

Ingram v. Coca-Cola Co., 200 F.R.D. 685 (N.D. Ga.

2001) (injunctive relief, $38,000 per class member)

Jaffe v. Morgan Stanley & Co., No. 3:06-cv-03903-

THE, Dkt. 249 (N.D. Cal. Oct. 22, 2008) (injunctive re-

lief, $16 million for 1300 individuals)

James v. Stockham Valves & Fittings Co., 559 F.2d

310 (5th Cir. 1977) (after trial, injunctive relief )

Kerner v. City of Denver, 2016 WL 3639937 (D.

Colo. July 8, 2016) (after trial, $1.7 million)

Ketchum v. Sunoco, Inc., No. 2:01-cv-01042-CG,

Dkt. 60 (E.D. Penn. Dec. 2, 2004); https://Awww.clearing-

house.net/ch Docs/public/EE-PA-0202-0003.pdf; https://

www.clearinghouse.net/chDocs/publice/EE-PA-0202-0002.

pdf (injunctive relief, $5.5 million for 200 individuals)

Kirkland v. NY State Dep’t of Corr. Servs. ,'711 F.2d

1117, 1121 (2d Cir. 1983) (injunctive relief)

Latino Officers Ass’n City of N.Y., Inc. v. City of

N.Y., 2004 WL 2066605 (S.D.N.Y. Sept. 15, 2004) (in-

junctive relief, $20 million)

Leonard v. Southtec, LLC, No. 3:04-0072, Dkt. 96

(M.D. Tenn. May 15, 2007); https://Awww.clearinghouse.

net/chDocs/public/EE-TN-0141-0002.pdf; https://www.

clearinghouse.net/chDocs/public/EE-TN-0141-0003.pdf

(injunctive relief, $900,000 for 500 individuals)

Lilly v. Harris-Teeter Supermarket, 720 F.2d 326

(4th Cir. 1983); 842 F.2d 1496 (4th Cir. 1988) (after

trial, back pay)

B-11

Lurns v. Russell Corp., 604 F. Supp. 1335 (M.D.

Ala. 1984) (injunctive relief, $250,000)

McClain v. Lufkin Indus., Inc., 649 F.3d 374 (5th

Cir. Aug. 8, 2011) (after trial, injunctive relief, $5.5 mil-

lion, plus fees)

McReynolds v. Mer ill Lynch, No. 1:05-cv-06583,

Dkt. 616 (N.D. Ill. Dec. 6, 2013); https://www.clearing-

house.net/chDocs/public/EE-IL-0282-0002.pdf; https://

www.clearinghouse.net/chDocs/public/EE-IL-0282-

0005.pdf (injunctive relief, $160 million for 700 indi-

viduals)

McReynolds v. Sodexho Marriott Servs., Inc., No.

1:01-.v-00510-ESH, Dkt. 312 (D.D.C. Aug. 10, 2005);

https://www.clearinghouse.net/chDocs/public/EE-DC-

0034-0001.pdf (injunctive relief, $80 million)

Middleton v. Publix Supermarkets Inc., 2000 WL

34248105 (M.D. Fla. 2000); https://www.clearinghouse.

net/chDocs/public/EE-FL-0155-0003.pdf; https://Awww.

clearinghouse.net/chDocs/public/EE-FL-0155-0002. pdf

(injunctive relief, $10.5 million)

Moore v. Johnson, No. 1:00-cv-00953, Dkt. 845

(D.D.C. May 3, 2017); https:/Awww.clearinghouse.net/

chDocs/public/EE-DC-0043-0024. pdf; https://www.

clearinghouse.net/chDocs/public/EE-DC-0043-0026.pdf

(injunctive relief, $24 million for 114 individuals)

Moore v. Norfolk S. Corp., 2000 WL 33951131 (N.D.

Ala. 2000); https://www.clearinghouse.net/chDocs/public/

EE-AL-0118-0002.pdf; https://www.clearinghouse.net/

B-12

chDocs/public/EE-AL-0118-0003.pdf (injunctive relief,

$29 million for 7700 individuals)

NAACP. v. N. Hudson Reg. Fire & Rescue, 665 F.3d

464 (3d Cir. 2011) (after trial, injunctive relief)

Nelson v. Wal-Mart Stores, 2009 WL 2486888 (D.

Ark. Aug. 12, 2009); https://www.clearinghouse.net/ch

Docs/public/EE-AR-0062-0002.pdf (injunctive relief,

$17.7 million)

Newsome v. Up-to-date Laundry, No. 1:01-cv-

02257-WDQ, Dkt. 99 (D. Md. Nov. 23, 2004); https://

www.clearinghouse.net/ch Docs/public/EE-MD-0138-0006.

pdf (consent decree) (injunctive relief, $1.8 million)

Owolabi v. Nw. Airlines, 2002 WL 31415000 (N.D.

Ga. 2002) ($14.4 million)

Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211

(5th Cir. 1974); Pettway v. Am. Cast Iron Pipe Co., 681

F.2d 1259 (11th Cir. 1982); Pettway v. Am. Cast Iron

Pipe Co., 721 F.2d 315 (11th Cir. 1983) (after trial, in-

junctive relief, back pay)

Port Auth. Police Asian Jade Society of N.Y., N.d.,

Inc. v. Port Auth. of NY. & N.J., 2010 WL 132349

(S.D.N.Y. Jan. 4, 2010) (after trial, back pay for 7 plain-

tiffs, plus fees)

Reed v. Dresser, Inc., No. 08-C-0818 (E.D. Wis. Sept.

23, 2010) ($950,000)

B-13

Roberts v. Texaco, Inc., 1997 U.S. Dist. LEXIS

23848 (S.D.N.Y. Mar. 21, 1997); https://www.clearing-

house.net/chDocs/public/EE-NY-0165-0003.pdf (in-

junctive relief, $115 million for 1350 individuals)

Royal v. Aramark Curp., 1999 WL 1823282 (E.D.

Pa. 1999) ($3.75 million for 268 individuals)

Satchell v. FedEx Corp., 2007 WL 1114010 (N.D.

Cal. Apr. 13, 2007); https://(www.clearinghouse.net/ch

Docs/public/EE-CA-0288-0019.pdf; https://www.clear-

inghouse.net/chDocs/public/EE-CA-0288-0016.pdf (in-

junctive relief, $53.5 million)

Sheppard v. Consol. Edison Co. of New York, 2002

WL 2003206 (E.D.N.Y. Aug. 1, 2002) (injunctive relief,

$6.745 million)

Shipes v. Trinity Indus., 987 F.2d 311 (5th Cir.

1993) (after trial, back pay)

Slaughter v. Wells Fargo Advisors, No. 1:13-cv-

06368 (N.D. Ill. 2016); http:/Awww.wfafinancialadvisor

racesettlement.com/media/795056/slaughter_v_wfa_-

_amended_settlement_agreement.pdf (settlment agree-

ment) ($35.5 million for 500 individuals)

Sledge v. J.P. Stevens & Co., 1980 WL 236

(E.D.N.C. Apr. 4, 1980); 1989 WL 90562 (E.D.N.C. Feb.

23, 1989) (after trial, injunctive relief, back pay)

Smith v. Nike Retail Servs., 2007 WL 2590363

(N.D. Ill. Jul. 30, 2007); Dkts. 186-187 (N.D. Ill. Oct. 2,

2007) (injunctive relief, $7.6 million for 230 individu-

als)

B-14

Stewart v. Rubin, 948 F. Supp. 1077 (D.D.C. 1996),

aff’d, 124 F.3d 1309 (D.C. Cir. 1997) (injunctive relief,

$4.7 million for 245 individuals)

Taylor v. DC Water & Sewer Auth., No. 1:01-cv-

00561-BJR, Dkt. 255, (D.D.C. Mar. 28, 2013); https://

www.clearinghouse.net/ch Docs/public/EE-DC-0032-0012.

pdf (injunctive relief, $2.9 million for 1000 individuals)

Tucker v. Walgreen Co., (S.D. Tl, Mar. 24, 2008);

https://www.clearinghouse.net/chDocs/public/EE-IL-0258-

0007.pdf (injunctive relief, $24.4 million for 10,000 in-

dividuals)

Turnley v. Banc of America Inv. Servs., No.

07cv10949—-NG, Dkt. 148 (D. Mass. Nov. 18, 2009); https://

www.clearinghouse.net/chDocs/public/EE-MA-0021-0003.

pdf; https://www.clearinghouse.net/chDocs/public/EE-

MA-0021-0004.pdf (injunctive relief, $7.2 million for

500 individuals)

United States v. City of New York, 717 F.3d 72 (2d

Cir. 2013); 2013 WL 2458471 (E.D.N.Y. June 3, 2013)

(after trial, injunctive relief, back pay)

Vines v. Covelli Enters., 2012 WL 5992114 (W.D.

Pa. Nov. 30, 2012); Dkt. 30 (W.D. Pa. Dec. 14, 2012)

($0.70 per hour for each hour worked by class member)

Wade v. Kroger Co., 2008 WL 4999171 (W.D. Ky.

Nov. 20, 2008) (injunctive relief, $16 million)

Warren v. Xerox Corp., 2008 WL 4371367 (E.D.N_Y.

Sept. 19, 2008) (injunctive relief, $12 million for 1500

individuals)

B-15

Waters v. Cook’s Pest Control, 2012 WL 2923542

(N.D. Ala. July 17, 2012) (injunctive relief, $2.5 million)

Williams v. Weirton Steel Div. of Nat'l Steel Corp.,

1983 WL 30395 (N.D. W.Va. Feb. 28, 1983) (injunctive

relief, $1.4 million)

Wright v. Stern, 553 F. Supp. 2d 337 (S.D.N.Y.

2008) (injunctive relief, $21 million for 3500 individu-

als)

Wynne v. McCormick & Schmick’s Seafood Rests.,

No. C06-3153, Dkt. 113 (N.D. Cal. Aug. 8, 2008); https://

www.clearinghouse.net/chDocs/public/EE-CA-0305-0004.

pdf (injunctive relief, $2.1 million)

G ER ATION CA

Alaniz v. California Processors, Inc., 73 F.R.D. 269

(N.D. Cal. 1976) (injunctive relief, $5 million settle-

ment)

Dorman v. Winn-Dixie Stores Inc., 1999 WL

33486606 (M.D. Fla. 1999); https://Awww.clearinghouse.net/

chDocs/public/EE-FL-0157-0003.pdf (injunctive relief,

$32.9 million)

Holloway v. Best Buy, No. 05-cv-5056 (N.D. Cal.

Nov. 9, 2011); https:/Awww.clearinghouse.net/chDocs/

public/EE-CA-0307-0006.pdf (injunctive relief )

Longmire v. Regents of the Univ. of Ca., 2004 WL

5201788 (N.D. Ohio 2004) ($12 million)

B-16

SEXUAL ORIENTATION

I TION CASES

Cote v. Wal-Mart Stores, Inc., No. 1:15-cv-12945-

WGY, Dkt. 83 (D. Mass. May 16, 2017) (injunctive re-

lief, $7.5 million)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.