While much of the news this week has been focused on a decision from the U.S. District Court for the Eastern District of Virginia that declared Virginia’s ban on same-sex marriage unconstitutional, we read with great interest a separate and equally important decision from the U.S. District Court for the Western District of Virginia in which the Court granted class certification to plaintiffs who also challenged Virginia’s same-sex marriage ban in Harris et. al. v. Rainey et. al., Case No. 5:13-CV-00077 (W.D. Va. Jan. 31, 2014). In that case, the plaintiffs obtained certification for two sub-classes of plaintiffs, including: (1) same-sex couples who have not married in the state of Virginia; and (2) same-sex couples lawfully married in other states.
It is one of the very few cases that we have reviewed that addresses claims of gay or lesbians on a class-wide basis.
Basis Of The Class Certification Order
In its ruling, the Court dispatched with Rule 23(a) requirements fairly swiftly. The Court held that numerosity was met with a showing of census data that over 15,000 same-sex households live in Virginia. The Court found commonality among the class because, whatever factual differences exist between the putative class members, the legal relief sought is the same, i.e., a declaratory judgment striking down Virginia’s laws barring same-sex marriage, and a permanent injunction barring their enforcement. Citing Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2556 (2011), the Court found that such relief rests on identical questions of law, and would clearly resolve the issues “class-wide” and in “one stroke.” For that same reason, the Court found that plaintiffs meet the typicality requirement.
On adequacy of representation, defendants argued that the separate case pending in the Eastern District of Virginia (Bostic v. McDonnell) precluded certification because efforts of counsel in the case to draft the Bostic plaintiffs into a non-opt-out class created a conflict. Acknowledging that the argument appears to be one in which defendants assert the Bostic claimants would be precluded from litigating their own case, the Court provided a simple response: it would exclude the Bostic plaintiffs from the class definition.
The Court addressed next the parties’ arguments on Rule 23(b)(2), and engaged in an interesting analysis regarding Defendants’ contention that the “so called” necessity doctrine preluded class certification under Rule 23(b)(2). Defendants argued that federal case law authorities apply a “need” requirement to deny class certification for suits seeking declaratory or injunctive relief under Rule 23(b)(2) where a class action is not necessary inasmuch as all the class members will benefit from n injunction issued on behalf of a single plaintiff. Recognizing that the doctrine was “highly unsettled,” the Court reasoned that “like Newton’s law of thermodynamics, for every class denial on the basis of need, one is able to find a decision, or several decisions, often in the same circuit, where other courts have certified Rule 23(b)(2) classes under virtually the same circumstances.” Id. at 9. Ultimately, the Court distinguished case law from the Fourth and Seventh Circuits, and the District Court of the District of Columbia, in finding that such a “need requirement” does not exist in Rule 23. The Court further noted that suits brought for injunctive relief alleging civil rights violations are “precisely the type of suit for which Rule 23(b)(2) was intended to provide class certification.” Id.
Implications For Employers
We previously warned that recent class certification rulings with respect to gay and lesbian plaintiffs signal a turning of the tide in complex litigation. While private employers need not worry about equal protection arguments, they should be aware that they are not immune from similar claims in the event they impermissibly deny certain benefits to gay or lesbian employees, either in jurisdictions that expressly protect employees from discrimination based on sexual orientation and/or gender identity and expression, or in claims that are enforced by the EEOC. Not only is the plaintiff’s bar becoming more creative and successful with these claims, but also local, state and federal law has continued to expand to protect rights for gay and lesbian employees.