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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1490%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 914

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1490%3A5. Public record. Not legal advice.