On July 5, 2014, Judge Matthew F. Kennelly of the U.S. District Court for the Northern District of Illinois certified a class of current and former African-American employees alleging claims of racial discrimination against Comcast, Inc. In Brand v. Comcast, Case No. 11 C 8471 (N.D. Ill. July 5, 2014), Judge Kennelly found that plaintiffs’ proposed class of employees who work or worked at a single Comcast facility located on the South Side of Chicago satisfied the requirements of Rule 23(b)(3).
The ruling is significant for employers, as most judges cast a doubting eye at efforts to certify hostile environment claims after Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011).
Background To The Case
Twelve named plaintiffs, comprised of current and former employees of a Comcast facility located on South 112th Street in Chicago, sued Comcast alleging that it discriminated against the employees of that facility due to the race of the employees and the customers. Plaintiffs alleged that the facility was infested with cockroaches, dilapidated, and dangerous. Plaintiffs asserted that their repeat requests for new equipment were ignored and that they were forced to use outdated a defective equipment. Additionally, Plaintiffs alleged that they were denied adequate training, were the subject of racial epithets, paid less than similarly-situated white Comcast employees, and were more likely to be placed on disciplinary performance improvement plans.
Plaintiff’s filed suit alleging discrimination under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964. Plaintiffs moved to certify a hostile work environment class. In addition, Plaintiffs moved to certify an additional “terms and conditions class” as well as a handful of sub-classes.
The Court’s Decision
The Court primarily focused on Plaintiffs’ request for certification of a hostile work environment class “consisting of all African-American employees who work or worked at Comcast’s 112th Street facility between January 2005 and the present.” Id. at 3. Plaintiffs alleged that the class consisted of at least 350 members.
The Court concluded that Plaintiffs had provided sufficient evidence of commonality per Wal-Mart Stores, Inc. v. Dukes when the majority, 11 out of 12 of the representative Plaintiffs and 80 percent of the declarant plaintiffs, testified that they had heard or been subject to racial epithets. The Court found that the high percentage of Plaintiffs and putative class member who had heard epithets constituted a common injury that was sufficiently “severe and pervasive” for class certification purposes. Id. at 30. Therefore, Plaintiffs had sufficiently alleged a common question among the workers about “whether they [had] heard racially offensive terms during the course of their employment to the extent that they constituted hostile work environment.” Id at 31.
Further, the Court found that the inclusion of allegations related to the infested and dilapidated condition of the office, as well as the used and defective equipment, further contributed to the “common question of whether there was a hostile work environment. . . .” Id. at 32. The Court reasoned that “by its nature, the issue of the condition of the 112th Street facility presents a concern common to any employee working there.” Id. Additionally, the manner in which Comcast handled complaints about the facility was also a part of the common question of whether the “facility constitutes a hostile work environment.” Id. at 33. Ultimately, the Court found that the Plaintiffs had shown “significant proof of a common question among members of the class regarding whether there was a hostile work environment at the 112th street facility.” Id. at 34.
After concluding that the Plaintiffs had satisfied the commonality requirement, the Court was easily able to find that typicality had been satisfied. The Court determined that its analysis of commonality “also explains why the named plaintiffs’ claims are typical of those with the class: not only did the vast majority of the named plaintiffs encounter racially offensive language and work with problematic equipment, but all of them worked in the same facility.” Based on this, the Court concluded that “the claims of the named plaintiffs are typical of those of the class for purposes of Rule 23(a)(3).” Id. at 36.
Further, the Court determined that certification under Rule 23(b)(3) was appropriate because the Plaintiffs were seeking money damages. The Court rejected Comcast’s argument that individual damages calculations would overwhelm the common questions to the class, because “common proof of damages for class members is not required.” Id. at 41 (internal citations and quotations omitted). Reiterating that the “common question is whether conditions at the 112th Street presented a hostile work environment for the African-American employees there,” the Court held that the Plaintiffs proposed class satisfied the predominance requirement of Rule 23(b)(3) and that certification was, therefore, proper. Id. at 40.
The Court went on to deny Plaintiffs’ request for certification of a number of ancillary classes, finding that the proposed pay, promotion, and termination classes did not meet the commonality requirement.
Implications For Employers
Brand v. Comcast is a significant decision for employers. This case illustrates that the U.S. Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011), did not ring the death knell for hostile work environment class actions, at least according to Judge Kennelly. According to Brand v. Comcast, a class based on the environment at a single facility may surmount the commonality barrier created by Wal-Mart Stores and gain certification. It remains to be seen whether the Seventh Circuit will agree with this interpretation, as the ruling represents a distinct minority view of Wal-Mart Stores in the federal courts.