Amicus Curiae Brief — United Airlines, Inc. v. Frank

No. 00-948

In The

Supreme Court of the United States

October Term, 2000

UNITED AIR LINES, INC.,

Petitioner.

v.

LESLIE FRANK, ET AL.

Respondents,

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND BRIEF OF AMICUS CURIAE,

THE COUNCIL FOR EMPLOYMENT LAW EQUITY,

IN SUPPORT OF THE PETITIONER

PETER A. SUSSER

Counsel of Record

MARK A. DE BERNARDO

JOSEPH E. SCHULER

TESSA J. GELBMAN

LITTLER MENDELSON, P.C.

1225 I Street, N.W., Suite 1000

Washington, D.C. 20005

(202) 842-3400

Counsel for Amicus Curiae,

The Council for

Employment Law Equity

No. 00-948

In The

Supreme Court of the United States

October Term, 2000

UNITED AIRLINES, INC.,

Petitioner,

Vv.

LESLIE FRANK, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

Pursuant to Rule 37.2(b) of this Court, the Council for

Employment Law Equity (“CELE”) by its undersigned

counsel, hereby moves for leave to file its brief as an amicus

curiae in support of Petitioner, United Airlines, Inc.” In

support of its Motion, the CELE states:

The Council for Employment Law Equity (“CELE”) is a

non-profit coalition of major employers committed to the

" Prior to filing this Motion, the CELE sought the consent of all

parties to the filing of its brief, as required by Rule 37.2 of this

Court. The Petitioner consented to the CELE’s request. The

CELE received no response from Respondents to its requests,

necessitating this Motion.

tt

highest standards of fair, effective, and appropriate

employment practices, and to the promotion of such

employment practices in the employer community; before

the judicial, legislative, and executive branches of

government; and to the public at large.

The CELE believes that its amicus curiae participation

will benefit the Court in this proceeding, as the organization

and its members bring a unique perspective to the issues

presented in this case. The CELE is a repository of

extensive experience and resources on how current law,

regulations, policies and practices impact the workplace.

With the development and maintenance of a fair and

productive workplace a primary goal, the CELE pays close

attention to how the fallout of court decisions may impact

this aim. Accordingly, the CELE and its members have an

important perspective on the critical policy issues involved

in this case.

WHEREFORE, the Council for Employment Law Equity

respectfully requests that the Court grant its motion and

permit it to file the accompanying brief as an amicus curiae

in support of the Petitioner.

Respectfully submitted,

PETER A. SUSSER

Counsel of Record

MARK A. DE BERNARDO

JOSEPH E. SCHULER

TESSA J. GELBMAN

LITTLER MENDELSON, P.C.

1225 I Street, N.W., Suite 1000

Washington, D.C. 20005

(202) 842-3400

Counsel for Amicus Curiae,

The Council for

February 2, 2001 Employment Law Equity

TABLE OF CONTENTS

SA GE ATER esas ccenctbicebnscnaidavconsecssonccasion ili

REC R MERE OR THREE ADIOS, cocccccssscsisascecescnsesssstsincscoeses 1

INTRODUCTION AND SUMMARY. ...0.......ccccccscesseeeseees 3

A. Frank Would Encourage A Needless Proliferation

Of Litigation, Including The Resurrection Of

Countless Losing Party's Class Action Suits ....... 6

B. The Inevitable Duplication Of Claims Will

Completely Eliminate Rule 23’s Protection Of

Defendants From Inconsistent Obligations And

Vitiate The Purpose Of The Rule......................20. 7

C. Equivalent Procedural Protections Satisfy Rule 23

Riel sipslitiehacicla eneiiilcbaatiacipactid Asanpiaiielaied 10

A. Lack Of Inducement To Settle Will Needlessly

TINY vissiciniscihedanndiossianeanetnctisindininabiigiee 12

B. The Burdens On Our Overtaxed Court Systems

arn Avcandicdiich-ahiceksensninsiapttinlidenibenbinbiindiishitiadio 14

ii

A. Nothing In The ADEA’s Text, Legislative

History, Or Subsequent Amendments Opens The

Act To Disparate Impact Analysis..................... 16

B. Non-Discriminatory Employers Will Be Unjustly

TRI i disceonsitsighenadascincniniaastacreasuaeidacipsdessaaneicen 19

CONTIG aaccccesiccrceccsseconsntnitsncsneesiannsiieeteamentsennanenes 20

TABLE OF AUTHORITIES

CASES

Air Line Pilots Ass'n Int'l v. United Air Lines, Inc.,

26 F.E.P. Cases 607 (E.D.N.Y. 1979)..............00000 passim

Alexander v. Aero Lodge No. 735,

565 F.2d 1364 (6th Cir. 1977),

cert. denied, 436 U.S. 946 (1978).........scssssessssessescesees 11

Blonder-Tongue Laboratories, Inc. v. University of

Illinois Foundation, 402 U.S. 313 (1971)...........:.cccsseeee 7

Broaddus v. Florida Power Corp.,

145 F.3d 1283 (11th Cir. 1998) wo. eecssececeneees 18

Califano v. Yamasaki,

is Fe i aiicteninsininicsecieniiadanbniieictiatiiteaniathapaaiiienias 9

Deposit Guaranty Nat'l Bank v. Roper,

445 US. 326, reh'g denied, 446 U.S. 947 (1980)........... 5

DiBiase v. SmithKline Beecham Corp.,

4B FBG TED COO Cae, BB isisissccscstessncscnssassinsinanssaconnsens 18

EEOC v. Francis W. Parker School,

41 F356 LOTS 70s Cae. 19DG) oicncccccrcccesscrscroocsecsacsasesanes 17

EEOC v. McDonnell Douglas Corp.,

RD FSG SAD CN Ce, BGT) nncsscccnesccrscsecncersinnstsccsseians 18

Ellis v. United Airlines, Inc.,

Fo Fe Fi Ce BD en nicthetintthinbinctintninicintinneionianin 17

Eubanks v. Billington,

DBD SG BF GK Cie, BGG arieisicesecintsbissscnssssinnnitoissenes 11

Frank v. United Airlines, Inc.,

216 F.3d 849 (9th Cir. 2000) .0.......eeececeeetsesseeeeee passim

iv

Gantt v. Wilson Sporting Goods Co.,

143 F.3d 1042 (6th Cir. 1998) ...... , 18

Gonzales v. Cassidy,

S76 FOE G7 Cee BOIS comeasveeninngimincicdmemas 6

Hansberry v. Lee, ’

PRS Fs joibapiitailiiadeitiatds 10

Hazen Paper Co. v. Biggins,

$07 U.S. 604 (1993)....cccccccccccseese 17, 18

Holmes v. Continental Can Co.,

noe fl) 0 11

In re Agent Orange Product Liability Litigation,

S56 FG CES Ge Ga We ccctnccascnsccinianinnseniannssinnanssin 6

In re A.H. Robbins Co., Inc.,

880 F.2d 709 (4th Cir.),

cert. denied, 493 U.S. 959 (1989) ............ccccccccesseesseecenees 9

Kyriazi v. Western Electric Co.,

ar & ft ts S| Ne 6

Markham yv. Geller,

451 UG. DOS CGB secccccsrnassctsnsttsniiiticsincuiciasinitedssiuiliaigs 17

Martin vy. Wilks,

4BO UG. FES COG scccerrvccinsiittsnitinsinsntncathattibiaadiitinians 10

Montana v. United States,

44D UB. TAT (0D T9P cntcscicrintstnsivsitsatinhiniistidtciediaascnaae

Mullin v. Raytheon Co.,

164 F.3d 696 (1st Cir.),

cert. denied, 120 S.Ct. 44 (1999) ......crccccsccccessescssesseseee 18

Prove v. State Teachers' Retirement System,

780 F.2d 776 (9th Cir.), cert. denied, 476 U.S. 1170

Sam Fox Publishing Co. v. United States,

DEG ULB. GED CIDE Drcccsrersvssscstnennsetnittiiesiiaalnaineiaitniaaiman 10

Smith v. Xerox Corp.,

196 F.3d 358 (2d Cir. 1999) 18

Stewart v. Rubin,

948 F. Supp. 1077 (D.D.C. 1996) .2........eceeeceeeeeseeeees 10

United States Parole Comm'n v. Geraghty,

445 US. 388 (1980)............... duichthcsincnbailinsidtial 5,8

Valerio v. Boise Cascade Corp.,

80 F.R.D. 626, aff'd, 645 F.2d 699,

cert. denied, 454 U.S. 1126 (1981) ............ccccccesseeseeeees 12

STATUTES AND AMENDMENTS

eee SID sniiseniniensintcintiintnieapenssiaasnmesdegan passim

GB UKs, Sh BCU EOE, cccutnicrrimiziensnnctinn passim

GS Us BD trtccttceesentapeenmeenmeninnacienniinine 12

Pub. L. 88-352, 78 Stat. 265 (1964) .........eccccccesseeseeseenes 16

Pub. L. 102-106, 105 Stat. 1071 (1991) 000.0... passim

FEDERAL RULES

REE SC passim

Fs ie Gn Bic I. ccascinnscnnccnngneciniicitthitiniisicibinndi passim

PUD. TR. GOW, Bo BID ccatindisecctinnerinsnsncientintneptniinasiiionttitiintasite 11

OTHER AUTHORITIES

Edward F. Sherman, ~

Class Actions and Duplicative Litigation,

62 IND. L. J. 507 (SUMMER 1987) ......-----sesseresesnsneeenenees 7

EEOC Charge Statistics,

as published and available at

http://www.eeoc.gov/stats/charges.html eemnaniinnnnapeatan i4

The Harvard Law Review Association,

Developments in the Law — The Paths of Civil Litigation:

IV. Class Action Reform: An Assessment of Recent

Judicial Decisions and Legislative Initiatives, 113 HARV.

L. REV. 1806 (Mary 2000) .....-sscssssesereererenerenernenenenes 5,14

Howard N. Fullerton,

The 2005 Labor Force: Growing, But Slowly, MONTHLY

LABOR REVIEW (NOV. 1995) .....-:-ssssssessessssersrsesensenssnenes 19

JAMES WM. MOORE ET AL.,

Moore's FEDERAL PRACTICE, § 23 (3d ed. 1999) ... 7, 11

Marika F.X. Litras,

“Civil Rights Complaints in U.S. District Court, 1990-98”

(NCI-173427) asssscccssscnecssnsseneernsernsesnnennneneennes 13, 15

THE OLDER AMERICAN WORKER:,

AGE DISCRIMINATION IN EMPLOYMENT (1965)

("The Report"), mandated by Pub. L. 88-352 § 715,

7B Stat. 265 (1964).......csecesssssssererensnennnnsnsssenensnnens 16, 17

RAND INSTITUTE FOR CIVIL JUSTICE,

Class Action Dilemmas, Pursuing Public Goals for

Private Gain (Nov. 1, 1999) ......- seniebimaaunianatananapenasainenin 14

Vii

Stacy Poulos and Demetra Smith Nightingale,

The Aging Baby Boom: Implications for Employment

and Training Programs, URBAN INSTITUTE, prepared

for the U.S. Department of Labor, Employment and

Training Administration, under |

Contract No. F-5532-5-00-80-30 ..........:ssssesesssserenresesres 19

Stephen Bough and Dirk Hubbard, :

Issues in Employment Class Action Litigation, 56 J. Mo.

BAR 37 (Jan./Feb. 2000) ....-..sssscssssessnsensenssnssescnesesenensenees 6

Thomas Willging, Laurel Hooper and Robert Niemic,

Empirical Study of Class Actions in Four Federal District

Courts, Washington, D.C.: FEDERAL JUDICIAL CENTER

(1996) ..esccosscssscnssssnssensecenscnsncssnscssanecsnnsconnscnnscsnscenecassenes 14

WRIGHT, MILLER & KANE,

FEDERAL PRACTICE AND PROCEDURE,

Rule 23 (2d ed. 1986) ........csecssssersseeseeeseneresrerenenens 5,9, 11

No. 00-948

LST A ee SSI NNN SY VRS Ae EE: PS SPANNER O

In The

Supreme Court of the United States

October Term, 2000

UNITED AIR LINES, INC.,

Petitioner.

Vv.

LESLIE FRANK, ET AL.

Respondents,

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICUS CURIAE,

THE COUNCIL FOR EMPLOYMENT LAW EQUITY, |

IN SUPPORT OF THE PETITIONER

INTEREST OF THE AMICUS!

The Council for Employment Law Equity (“CELE”) is a

non-profit coalition of major employers committed to the

highest standards of fair, effective, and appropriate

employment practices, and to the promotion of such

employment practices in the employer community; before

the judicial, legislative, and executive branches of

government; and to the public at large.

' The CELE hereby certifies, in accordance with Rule 37.6 of this

Court, that no counsel for a party authored this brief in whole or in

part, and no person or entity, other than the CELE, its members, or

its counsel, has made a monetary contribution to the preparation or

submission of this brief.

The CELE has a significant interest in the questions

presented in this case. By (a) refusing to enforce a judgment

rendered in a prior class action suit and allowing the

relitigation of the same issues involving the same parties in a

subsequent class action, and (b) entertaining a disparate

impact claim under the Age Discrimination in Employment

Act, 29 U.S.C. §§ 621-624 (“ADEA”), the Ninth Circuit not

only ignored established law, but also the enormous damage

its decision will cause in the workplace.

If the Ninth Circuit’s decision in this case stands,

employers will be discouraged from deviating from the

status quo, as doing so could alter the “nucleus of facts”

common to the class action members and expose the

employer to the risk and exposure of renewed litigation. The

finding that an employer’s beneficial changes to an

employment policy triggered a change in facts sufficient to

negate a prior judgment’s preclusive effect will be a

disincentive for other employers to implement, alter, or

improve workplace policies and benefits. Furthermore, the

Ninth Circuit’s resultant failure to honor a court judgment —

thereby subjecting an employer to duplicative litigation —

jeopardizes the incentives to settle Rule 23(b)(2) class

claims. Such consequences would be detrimental to both

employers and employees.

The holding by the Ninth Circuit that the ADEA permits

a disparate impact analysis would likewise impose

unwarranted burdens on well-meaning employers. Many of

the CELE’s members — and countless other employers

subject both to class action suits and the ADEA — have

multi-state operations. The current split between the Courts

of Appeals regarding whether the ADEA is subject to

disparate impact analysis hinders employers’ ability to create

uniform employment policies. Therefore, a definitive

resolution of these issues by this Court is necessary.

INTRODUCTION AND SUMMARY

The Ninth Circuit’s refusal to honor a judgment in a prior

class action suit where the class was adequately cere ans

and properly certified under FED. R. Civ. P. 23(b)(2), and

instead permit the relitigation of the same issues involving

the same parties in a subsequent class action certified under

Rule 23(b)(3), not only violates the principles of res judicata

and collateral estoppel, but also threatens the integrity of the

class action process itself. For employment class action

litigation in particular, this decision, if upheld, will place

employers in a lose-lose situation when faced with injunctive

class action suits, and reduce the incentive to settle and make

positive employment policy changes. Moreover, the Ninth

Circuit’s determination that disparate impact claims are

cognizable under the ADEA runs contrary to the act’s intent

and public policy.

Petitioner United Airlines implemented a weight policy

for all of its flight attendants in the early 1970s. Charging

that this weight policy was unfairly implemented and thus

discriminated against women in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII’), a

group representing “all present and future female [United]

flight attendants” filed an “injunctive” class action suit

certified under Rule 23(b)(2).

The District Court upheld the validity of United’s weight

policy, but determined that the airline had enforced it in a

discriminatory manner. The judgment entered on October

30, 1979 permitted United to continue using the weight

policy, as long as it was implemented in accordance with

Title VII. Subsequently, the parties entered into an

agreement whereby United increased the weight limits for

men, women, and older employees.

Nonetheless, in 1992 Respondents once again attacked

the facial validity of the same weight policy in the Northern

District of California. In addition to sex-based disparities

allegedly inherent in the policy itself, the Respondents

claimed that the policy has a disparate impact on older

employees in violation of the ADEA. This time, the class

sought damages as their exclusive remedy, thereby garnering

a Rule 23(b)(3) certification, which imposes stricter notice |

requirements, and gives members the saietemiacetsd to opt out

of the class.

The District Court properly dismissed this new suit,

holding that the Title VII claims were precluded by the prior

judgment and that the ADEA does not provide for disparate

impact analysis.2 A divided panel of the Ninth Circuit

reversed on both grounds. Among the reasons for finding

that the plaintiff class was not precluded from relitigating the

legality of the weight policy were a supposed change in

controlling facts due to the adoption by United of more

lenient standards, and the fact that a Rule 23(b)(2) suit

differs from a Rule 23(b)(3) suit in that it does not permit

class members to opt out, as required in a suit for damages.

These justifications, as will be explained, not only defy

common sense, but also public policy. If allowed to stand,

this decision will have disastrous repercussions for class

action suits in general, and employment policy in particular.

For these reasons, the CELE urges this Court to grant the

petition for a writ of certiorari, and to reverse the decision of

the Ninth Circuit.

ARGUMENT

I. The Decision In Frank Would Effectively Negate Two

Prime Purposes Of Class Action Lawsuits: Efficiency

And Avoidance Of Inconsistent Adjudications.

Class action litigation — rooted in English common law

and incorporated into American jurisprudence by the mid-

* The adequacy of the prior representation was not challenged by

Respondents before the District Court or the Ninth Circuit.

ER Re eT NNT eR

1800s> — remains a necessary procedural device for

adjudicating complex, multiparty claims. This Court has

emphasized that the justifications for class action lawsuits

include the need to protect the defendant from inconsistent

obligations, protect the interest of absentees, provide a

convenient and economical means for disposing of similar

lawsuits, and facilitate the spreading of litigation costs

among numerous litigants with similar claims. United States

Parole Comm'n v. Geraghty, 445 U.S. 388, 423 (1980).*

The efficiency and finality goals of class action litigation

are thoroughly intertwined. The aggregation of similar

claims into one suit not only enables a large group of

grievants — who otherwise may not have the financial

resources to set forth individual claims — to have their claims

heard,° but also prevents relitigation of the same claims.

One final, binding adjudication of a class claim precludes the

possibility of inconsistent decisions and clogged dockets.

These benefits conferred upon all parties are highly

instrumental in the employment context. Class actions

provide past and present employees with an efficient and

cost-effective means of resolving similar claims. Class

actions are particularly suited to address charges of

discriminatory employment practices that affect a large

number of employees. In return, employers need only

> WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND

PROCEDURE Rule 23 § 1751 (2d ed. 1986).

* See also Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326,

reh’g denied, 446 U.S. 947 (1980).

* See, e.g., The Harvard Law Review Association, Developments

in the Law — The Paths of Civil Litigation: IV. Class Action

Reform: An Assessment of Recent Judicial Decisions and

Legislative Initiatives, 113 HARV. L. REV. 1806, 1808 (May 2000)

(class action seeks to enhance procedural fairness by ensuring that

people who have been wrongly harmed have access to the judicial

system).

defend against one suit and garner the certainty that a court-

sanctioned policy or practice can thereafter be followed

without exposure, absent a change of law or controlling fact.

The decision in Frank v. United Airlines, Inc., 216 F.3d

849 (9th Cir. 2000), however, if upheld, would radically

disrupt this balance of benefits. The fundamental rights of

hundreds of thousands of past and future class action

litigants — plaintiffs and defendants — are implicated.

A. Frank Would Encourage A Needless Proliferation

Of Litigation, Including The Resurrection Of

Countless Losing Party’s Class Action Suits.

The Ninth Circuit’s decision in Frank will no doubt lead

to an onslaught of duplicative litigation. Essentially, a

plaintiff could relitigate an entire case simply by requesting

damages. Under Frank, a Plaintiff's attorney who filed —

and lost — a Rule 23(b)(2)” class action, can theoretically

refile the same suit the next day by reclassifying the case as

one for damages. This is not so in any Circuit which has

faced this issue except the Ninth.’ This holding will have

disastrous repercussions.

For example, Frank will open a Pandora’s box of

employment discrimination Suits for classes certified prior to

1991. The 1991 amendments® to the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e et seqg., provided for the award of

° Class actions certified under FED. R. Civ. P. 23(b)(2) typically

are suits for injunctive relief. In the employment context, the class

generally seeks relief in the form of a court-ordered change in an

employment practice along with the equitable remedy of back pay.

See, e.g., Stephen Bough and Dirk Hubbard, Issues in Employment

Class Action Litigation, 56 J. MO. BAR 37 (Jan/Feb. 2000).

” See, e.g., Kyriazi v. Western Electric Co., 647 F.2d 388, 393 (3d

Cir. 1981); In re Agent Orange Product Liability Litigation, 996

F.2d 1425 (2d Cir. 1993); Gonzales v. Cassidy, 474 F.2d 67 (Sth

Cir. 1973).

* Pub. L. 102-166.

—?

compensatory and punitive damages in employment

discrimination cases. Prior to 1991, an employee or class

was precluded from seeking such damages. Thus, many

employment class suits were certified under Rule 23(b)(2).

The practical effect of the Frank decision on this issue is

that all significant class action suits certified under Rule

23(b\(2) before 1991 may now be relitigated as suits for

damages. Previously settled and dormant class actions will

be subject to relitigation on the same substantive issues

whenever class counsel can bootstrap jurisdiction in the

Ninth Circuit. Doing so exposes employers and other

defendants — as well as the judicial system — to the type of

relitigation “gaming table” atmosphere that prompted the

banishment of the doctrine of mutuality of estoppel by this

Court in Blonder-Tongue Laboratories, Inc. v. University of

Illinois Foundation, 402 U.S. 313, 330 (1971). The need to

avoid this judicial redundancy is exactly why class actions

were implemented in the first instance.”

B. The Inevitable Duplication Of Claims Will

Completely Eliminate Rule 23’s Protection Of

Defendants From Inconsistent Obligations And

Vitiate The Purpose Of The Rule.

Federal Rule 23 was devised to facilitate an expeditious

and economical means of processing multi-party litigation.

As part of this system, the preclusive effects of res judicata

and collateral estoppel ensure that the parties are not subject

to duplicative and inconsistent adjudications. 25

* See, e.g., Edward F. Sherman, Class Actions and Duplicative

Litigation, 62 IND. L. J. 507, 525 (Summer 1987). (“The raison

d’étre for a [Rule 23}(b\(2) class — that injunctive relief is

applicable to the class as a whole — would be undermined if

duplicative suits could result in conflicting judgments).

10 See, eg. James Wm. Moore ET AL., MOORE’S FEDERAL

PRACTICE, § 23.02 (3d ed. 1999): “A class action provides a

Frank ignores the intent of the Rule. In Frank, an issue

that was previously litigated in Air Line Pilots Ass’n Int'l v.

United Air Lines, Inc., 26 F.E.P. Cases 607 (E.D.N.Y. 1979)

— the legality of United Airlines’ use of a weight limit policy

— was resurrected with impunity in the subsequent lawsuit.

The Ninth Circuit denied the preclusive effect of the prior

action, even though the case involved the same issue,

defendant, and plaintiff class. Thus, the Ninth Circuit

subjected United Airlines’ vindicated policy to renewed

facial attack, turning the principles of claim and issue

preclusion on their heads.

The Ninth Circuit attempted to distinguish Frank from

Montana v. United States, 440 U.S. 147, 153 (1979), which

held that an issue “actually and necessarily determined” by a

court is “conclusive in subsequent suits based on a different

cause of action involving a party to the prior litigation,” by

claiming that the notice requirements of the prior Rule

23(b)(2) action failed to meet the more stringent notice and

opt out requirements imposed by Rule 23(b)(3). Because of

this asserted lack of opt out rights for all potential class

members, the Ninth Circuit reasoned that it need not honor

the prior judgment. However, this reasoning ignores the

purpose behind the more stringent notice and opt-out

requirements of 23(b)(3) certification. Rule 23(b)(3) was

designed to address situations in which individual members

of a class, although affected by some common wrong,

experience particularized damages, and therefore are afforded

the opportunity to “opt out” of the class and pursue their own

lawsuits. Rule 23(b)(3) class members are often “loosely

associated by common questions of law or fact, rather than

single proceeding in which to determine the merits of the

plaintiffs’ claims, and therefore protects the defendant from

inconsistent adjudications.” See also Geraghty, 445 US. at 402-

403 (the justifications that led to the development of class actions

include the protection of the defendant from inconsistent claims).

9

by any pre-existing or continuing legal relationship,” and

therefore are in need of greater due process protection.

WRIGHT & MILLER, § 1786, at 194. In contrast, because the

Rule 23(b)(2) class is more cohesive, it is less likely that

there will be special defenses or issues relating to individual

members. See Id. at 195. Thus, the class is not provided

with opt out rights, in part because any damages incurred are

outweighed by the broader injunctive remedy, but also,

logically, because greater commonality helps ensure adequate

representation of all class members and justifies less than

maximum due process protections for absent class members.

For example, a mass tort case involving a defective

product derives from a common wrong (faulty product) but

results in particularized damages among the plaintiff class

members. A Rule 23(b)(3) certification is warranted to

ensure that individuals with particularized damages are

afforded their day in court. In contrast, a broad, uniformly-

applied employment policy is best addressed via an

injunctive class action suit, since the harm incurred is likely

uniform in kind, if not degree, across the plaintiff class.

Granted, there will be members of a Rule 23(b)(2) class

who believe their claims are unique, and thus warrant the

opportunity for individualized suit. However, the very

representative nature of class actions mandates that some

individual claims be subjugated to that of the class. The class

action was designed as an exception to the usual rule that

litigation is conducted by and on behalf of the individually

named parties only. See Califano v. Yamasaki, 442 U.S. 682,

700-701 (1979); In re A.H. Robbins Co., Inc., 880 F.2d 709

(4th Cir. 1989), cert. denied, 493 U.S. 959. Therefore, that

all members of the 23(b)(2) class in Frank were not

necessarily notified pursuant to Rule 23(b)(3)'! and not given

"' It should be noted that the notice of the 23(b)(2) class action in

this case met the more stringent requirements of a Rule 23(b)(3)

“damages” class certification.

10

a chance to opt out is imapposite for determining the

judgment’s preclusive effect. The substantive issue decided

(the legality of the employment policy) is an issue that affects

the class uniformly, does not raise the same due process

concerns anticipated by a typical Rule 23(b)(3) case, and was

adequately adjudicated as an injunctive class suit. Allowing

Frank to stand will therefore gut Rule 23(b)(2)’s purpose.

C. Equivalent Procedural Protections Satisfy Rule 23

Standards.

The injunctive class in ALPA was provided with ample

procedural protections typical of properly administered Rule

23(b)(2) class actions. In fact, the plaintiff class in Frank

does not challenge the validity of the prior 23(b)(2)

certification or the adequacy of the prior class representation.

It stands to reason that unless the prior action was somehow

inherently unfair, the class members were adequately

represented and thus bound by the prior judgment.

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

for example, the court ruled that even though an employee

was not permitted to opt out of a class in a racial

discrimination case, she was nonetheless bound to the

settlement reached in the action, since the requirements of

due process and fundamental fairness had been satisfied. In

determining that the process was fair, the court noted that she

had been adequately represented by the named plaintiffs and

by a capable and experienced class counsel.'? So, too, were

the members of the 23(b)(2) class in Frank.

Additionally, that the plaintiffs now seek monetary

damages is irrelevant to the underlying fairness issue. The

'2 The adequacy of representation has been a critical factor in

determining the preclusive effect of a class judgment. See, e.g.,

Hansberry v. Lee, 311 U.S. 32 (1940); Martin v. Wilks, 490 U.S.

~ 755, 762 n.2 (1989); Sam Fox Publishing Co. v. United States, 366

U.S. 683, 691 (1961).

to the class as a whole, “It is not uncommon in employment

discrimination cases for the class also to seek monetary relief

declaratory injunctive relief, at least where the monetary

relief does not predominate. See Prove y. State Teachers’

Retirement System, 780 F.2d 776, 780 (9th Cir.), cert. denied,

476 U.S. 1170 (1986); Holmes v. Continental Can Co., 706

F.2d 1144, 1152 (11th Cir. 1983); Alexander v. Aero Lodge

No. 735, 565 F.2d 1364, 1372 (6th Cir. 1977), cert. denied,

436 U.S. 946 (1978); WricuT & MILLER at § 1775; JAMES

WM. Moore, ET AL. at § 23.40[4].

In Frank, since the issue was United’s employment

policy as a whole, a Rule 23(b)(2) certified class was

appropriate, and fairly executed. Therefore, the original

judgment regarding the validity of that policy should stand.

The decision of the Ninth Circuit, to the contrary, is at odds

with the requirements of Rule 23, and should be overturned.

° For example, in cases involving so-called “hybrid” actions,

other courts have consistently held that opt-out rights are not

required but may be permitted by the court under the provisions of

Rule 23(d). See, e.g., James Wm. Moore ET AL., at § 23.43[6][b]

and cases cited therein.

A. Lack Of Inducement To Settle Will Needlessly

Prolong Litigation.

Frank not only jeopardizes the preclusive effect of prior

judgments, but also the finality of settlements and consent

decrees. Although only the prior court’s judgment was at

issue in Frank, since the parties’ post-judgment agreement to

implement United’s revised policy was never submitted to

the court for formal approval, the reasoning in Frank would

apply with equal force to consent decrees.

The enforceability of a valid consent decree as equal to

that of a court judgment is well established. It has been noted

that as long as there is sufficient notice and representation,

“there are few instances in which a class action defendant

should not receive the full benefit of the doctrine of res

judicata whether based upon trial on the merits or

settlement.” Valerio v. Boise Cascade Corp., 80 F.R.D. 626,

aff'd, 645 F.2d 699, cert. denied, 454 U.S. 1126 (1981).

Additionally, § 108 of the Civil Rights Act of 1991,

codified at 42 U.S.C. § 2000e-2(n), shields valid consent

decrees from collateral attack. Frank, however, renders

consent decrees entered pursuant to Rule 23(b)(2) class

actions vulnerable. Consequently, Frank, if let stand, will

contravene the purpose behind 42 U.S.C. § 2000e-2(n) of

fostering settlement and will discourage mutually agreeable

solutions — consent decrees being only one such example — to

class action litigation.

There are a number of benefits to resolving employment-

related charges at the outset. First and foremost, both parties

save a great deal of time and money by foregoing often

protracted and invariably expensive litigation. Second, early

disposition of claims — especially through cooperative

4 Pub. L. 102-166.

See

13

alternative dispute resolution methods — helps to preserve the

post-lawsuit employment relationship. Finally, early

settlements often involve consent decrees in which

employers agree to implement beneficial workplace changes.

It is not surprising, therefore, that the Civil Rights Act of

1991 encourages such pretrial resolutions. Section 118 of

Pub.L. 102-166 promotes the use of alternative dispute

resolution methods such as settlements, negotiations,

conciliation, fact finding, and arbitration.

Most parties have taken heed. Between 1990 and 1998,

out-of-court settlements rose from 31 percent to 35 percent.'°

Voluntary dismissals increased from 8 percent to 13 percent

during the same time period. Proceeding to trial is

significantly less common. The percentage of employment-

related cases that were resolved via verdict or some other

form of judgment for either of the parties had actually

decreased from 9 percent in 1990 to 5 percent in 1998.'°

If Frank is upheld, this trend will likely reverse. The loss

of a 23(b)(2) settlement’s binding effect would eliminate any

inducement to partake in such pretrial resolution methods.

Employers, as the defendants to employee class actions,

would be disinclined to settle — to the disadvantage of both

parties and the judicial system at large — because it would be

senseless to pay money to make a problem go away if the

solution is merely temporary. In order to concede some

degree of culpability, employers need a fair assurance that

not only will all members be bound by the resolution, but

that the resolution of the claim itself will endure.

Because of the unceriainty inherent in Frank, cases

formerly prone to settlement will instead proceed to trial.

Such a result clearly runs contrary to public policy.

" Marika F.X. Litras, “Civil Rights Complaints in U.S. District

Court, 1990-98,” (NCJ-173427).

Id.

14

B. The Burdens On Our Overtaxed Court Systems

Would Grow.

The predicted reduction in settlements and relitigation of

recertified class action suits will no doubt further hamstring

the judicial system’s ability to process employment

discrimination claims. Class action suits ordinarily resolved

through early settlement or voluntary dismissal would

instead proceed to fully litigated conclusions — a time-

consuming and financially burdensome process.

The economies of scale generated by class action suits

ordinarily confer cost and time savings on the judicial

system. Class actions “improve judicial efficiency by

aggregating a multitude of individual claims . . . eliminate or

reduce the threat of repetitive litigation,” and thus “[free] the

court system to adjudicate more claims with less delay.”"

Despite this efficiency, a recent increase in class action

litigation has imposed new costs for employers and new

burdens for the courts.'* According to a recent study of class

actions put forward by the RAND Institute for Civil Justice,

federal judges spend about five times as many hours on class

actions as on “average” civil cases.'? If Frank stands and

proliferates, the increase in class action suits will further clog

an already over-loaded employment litigation docket.

. In Fiscal Year 1999, the reported number of employment

discrimination charges filed with the EEOC totaled 77,444.”°

Private employment suits also grew at an astronomical rate.

'7 113 HARV. L. REV. at 1808.

'® RAND INSTITUTE FOR CIVIL JUSTICE: Class Action Dilemmas,

Pursuing Public Goals for Private Gain (Nov. 1, 1999).

'9 See Thomas Willging, Laurel Hooper, and Robert Niemic,

Empirical Study of Class Actions in Four Federal District Courts,

Washington, D.C.: FEDERAL JUDICIAL CENTER, 1996.

*° EEOC Charge Statistics, as published and available at

http://www.eeoc.gov/stats/charges.html.

15

In January of the year 2000, the Bureau of Justice Statistics

published a study showing that from 1990 through 1998,

private employment-related civil rights cases nearly tripled.”!

Private employment-related complaints accounted for

approximately 65 percent of the overall increase in cases that

have flooded the U.S. District Courts in this period.”

Employment-related class action suits have likewise

increased. Between 1996 and 1998, the number of civil

rights class action suits increased from 213 to 265." With

the outcome of Frank encouraging the relitigation of most

claims, these numbers will continue to escalate.”4

il, Em ers ft With No ntive To Make

han ial T lo

In Frank, one of the purported rationales for relitigating

the issues was that “the two suits did not arise from the same

transactional nucleus of facts.” Frank, 216 F.3d at 851. This

“change” in facts, however, was merely the employer’s

implementation of a more lenient weight policy. In other

words, because the employer voluntarily relaxed its weight

policy requirements, the Ninth Circuit determined that the

interests of the class had sufficiently changed to bar any

preclusive effect of the prior suit. Not only is this conclusion

nonsensical, but also detrimental to employees as a whole.

*' Marika F.X. Litras, “Civil Rights Complaints in U.S. District

Court, 1990-98,” (NCJ-173427). Employment discrimination

cases increased from 8,413 filings in 1990 to 23,735 in 1998.

Id.

3 Id.

* The optimum strategy for plaintiff's counsel in the post-Frenk

landscape will be to file a Rule 23(b)(2) action first. If the class

loses, Frank grants an automatic second bite at the apple under

Rule 23(b)(3); if the class wins, it can use issue preclusion against

the employer to ensure a victory in a second action for

compensatory and punitive damages. Either way, the number of

cases doubles.

16

Faced with the prospect of duplicative litigation,

employers have little incentive to update, improve, eliminate,

or alter their employment policies in any way. For instance,

an employer that liberalizes its employee leave policy or

increases health benefits would be triggering a “change” in

employment conditions, thereby subjecting itself to the

possibility of new litigation. It follows, therefore, that short

of a judicial or legislative mandate, employers will maintain

the status quo — to the detriment of all parties involved.

For these reasons, this Court must reevaluate the Ninth

Circuit’s decision. If permitted to stand, Frank would

dramatically alter the employment class action landscape.

IV. Permitting A Disparate Impact Analysis Of ADEA

Claims Contravenes Legislative Intent And Would

Significantly Harm Well-Meaning Employers.

A. Nothing In The ADEA’s Text, Legislative History,

Or Subsequent Amendments Opens The Act To

Disparate Impact Analysis.

Age — unlike sex, race, nationality or disability — is a

unique legally protected category in that all employees will

conceivably become a member of the protected class at some

point in their careers. Therefore, the statutory protections

conferred upon this class differ from those provided to

classes protected under Title VII.

The legislative history of the ADEA reflects this

difference. A study conducted by the Secretary of Labor on

the causes and effects of age discrimination,” which served

as the impetus for the ADEA, made a point of distinguishing

between “arbitrary” age discrimination and _ other

employment policies and actions that may disproportionately

affect older employees, recommending that only the former

25 THE OLDER AMERICAN WORKER: AGE DISCRIMINATION IN

EMPLOYMENT (1965) (“The Report”), mandated by Pub. L. No.

88-352, § 715, 78 Stat. 265 (1964).

17

be prohibited.” See also Hazen Paper Co. v. Biggins, 507

U.S. 604, 610 (1993) (“{d]isparate treatment . . . captures the

essence of what Congress sought to prohibit in the ADEA”).

Additionally, the language of the ADEA also

distinguishes age discrimination from Title VIl-prohibited

discrimination. Under the ADEA, it is unlawful for an

employer:

to fail or refuse to hire or to discharge any individual

or otherwise discriminate against any individual with

respect to his compensation, terms, conditions, or

privileges of employment, because of such

individual’s age.”’

This general prohibition is qualified by § 623(f(1): “ijt

shall not be unlawful for an employer . . . to take any action

otherwise prohibited . . . where the differentiation is based on

reasonable factors other than age.” 29 U.S.C. § 623(f)(1).

This passage permits an employer to use factors other than

age as rationales for adverse employment actions that

differentially impact individuals protected under the ADEA.

Read with the ADEA’s general prohibition against age-based

discrimination, it follows that: it shall be unlawful to

“discriminate against any individual . . . because of such

individual’s age,” except when “based on . . . factors other

than age.” If § 623(f)(1) were not intended to exclude a

disparate impact claim, then this section would stand for the

circular proposition that “only age discrimination is age

discrimination.”

°° The Report at 21-25.

*7 29 U.S.C. §623(a)(1).

** See also Markham vy. Geller, 451 US. 945, 947 (1981)

(Rehnquist, J., dissenting from denial of cert.) (interpreting 29

U.S.C. § 623(f)(1) as denying an ADEA disparate impact

analysis); Ellis v. United Airlines, Inc., 73 F.3d 999 (10th Cir.

1996) (same); EEOC v. Francis W. Parker School, 41 F.3d 1073

18

Moreover, the fact that the Civil Rights Act of 1991

amended Title VII by .explicitly providing for causes of

action based upon disparate impact,” but did not do the same

when it simultaneously amended the ADEA,” further

supports the idea that Congress did not envision such age-

based disparate impact claims.

The First, Seventh, and Tenth Circuits have already come

to this conclusion.*! This Court, in addition to the Third,

Sixth, and Eleventh Circuits, has expressed in dicta that the

ADEA likely does not permit disparate impact analysis. See,

e.g., Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993);

DiBiase v. SmithKline Beecham Corp., 48 F.3d 719 (3d Cir.

1995); Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042

(6th Cir. 1998); Broaddus v. Florida Power Corp., 145 F.3d

1283 (11th Cir. 1998). The Second, Eighth and Ninth

Circuits, however, have disregarded this Court’s analysis of §

623(f)(1) of the ADEA in Hazen Paper, and have instead

permitted disparate impact claims to proceed. See, e.g.,

Smith v. Xerox Corp., 196 F.3d 358 (2d Cir. 1999); EEOC v.

McDonnell Douglas Corp., 191 F.3d 948 (8th Cir. 1999).

This Circuit split will continue to plague multi-

jurisdiction employers until this Court resolves the issue.

Most large companies conduct operations across judicial

circuits. Absent a uniform decision as to whether the ADEA

permits a claim for disparate impact, employers will be

subject to inconsistent precedent. Inconsistent applications

of the ADEA prevent an employer from implementing

uniform policies and practices, and encourage forum

shopping by plaintiffs.

(7th Cir. 1994) (same); Mullin v. Raytheon Co., 164 F.3d 696 (ist

Cir.), cert. denied, 120 S.Ct. 44 (1999) (same).

?° Pub. L. No. 102-166, § 105, 105 Stat. 1071, 1074-75 (1991).

*° See, e.g., Id. at § 115; 105 Stat. at 1079.

*! See, e.g., supra note 28.

19 ;

B. Non-Discriminatory Employers Will Be Unjustly

Penalized.

Additionally, recognizing a claim for disparate impact

under the ADEA would routinely impose unjustified liability

on employers. Older workers represent a significant

percentage of the labor force. This is due in large part to the

participation of the “baby boom” cohort (individuals born in

the United States between 1946 and 1964). Currently, there

are more than 83 million baby boomers in this country”

When this cohort entered the workforce, they increased the

size and median age of the labor market.

According to a study conducted by the Bureau of Labor

Statistics, by the year 2005, the number of workers age 45

and older will total approximately 55 million, equaling about

37 percent of the labor force.*> These statistics reflect an

increase from 1995, when it is estimated there were about 41

million workers age 45 and older, representing approximately

31 percent of the labor force.*4 By 2005, the median age of

the workforce is predicted to reach 41 years of age.*

The practical effect of this “graying” of the workforce for

employers is that a typical work site already is or soon will

be populated by a majority of employees protected by the

ADEA. Almost any management decision, including

revisions of policies, terminations, and hiring choices, is

bound to impact this older population simply by virtue of its

size. Thus, effectively any employment action — such as a

* Stacy Poulos and Demetra Smith Nightingale, The Aging Baby

Boom: Implications for Employment and Training Programs,

URBAN INSTITUTE, prepared for the U.S. Department of Labor,

Employment and Training Administration, under Contract No. F-

5532-5-00-80-30.

* See Howard N. Fullerton, The 2005 Labor Force: Growing, But

Slowly, MONTHLY LABOR REVIEW (Nov. 1995).

-s

20

reduction-in-force, change in benefit plan, or implementation

of stricter hiring standards — would be subject to disparate

impact scrutiny. It follows that almost every employment

action would be susceptible to litigation. Employers would

be put in the unfortunate position of having to justify how

their facially neutral, non-discriminatory decisions, which

may incidentally impact employees 40 years and older, are

necessary to the operation of their businesses.

While it is imperative that employers be held accountable

for management decisions that intentionally discriminate

against older workers, it is equally important that they not be

unjustly punished for nondiscriminatory actions that may

incidentally impact older employees. Doing so would

impose undue burdens on employers, and would also burden

the courts with potentially frivolous litigation. Legislative

history points to the fact that disparate impact claims were

never intended to be cognizable under the ADEA, and

allowing employees to bring such claims invites abuse.

CONCLUSION

The Council for Employment Law Equity respectfully

urges this Court to grant the writ of certiorari to review the

judgment below, to reverse the ruling that would permit the

class of United Airlines flight attendants to relitigate their

claims, and to recognize that the ADEA does not provide for

disparate impact analysis.

February 2, 2001

21

Respectfully submitted,

PETER A. SUSSER

Counsel of Record

MARK A. DE BERNARDO

JOSEPH E. SCHULER

TESSA J. GELBMAN

LITTLER MENDELSON, P.C.

1225 I Street, N.W., Suite 1000

Washington, D.C. 20005

(202) 842-3400

Council for Employment

Law Equity