1280px-Flag_of_Michigan.svg.png (1280×854)By Gerald L. Maatman, Jr., and Alexis P. Robertson

On August 19, 2014, in Nowacki v. Department of Corrections, Case No. 315969  (Mich. Ct. App. Aug. 19, 2014), the Michigan Court of Appeals affirmed the certification of a class of male corrections officers alleging that certain policies enacted at the Women’s Huron Valley Correctional Facility, the defendant’s only facility of all female prisoners, discriminated against male corrections officers in violation of Michigan Civil Rights Act.  The Michigan Court of Appeals affirmed the certification of a class of male corrections officers alleging that the Defendants’ bona fide occupational qualification (“BFOQs”) improperly denied men job opportunities by precluding men from certain job positions that were limited to females.

Case Background

In the wake of several lawsuits against the Department of Corrections (“Department”), alleging that prison staff were sexually abusing female prisoners, the Department and the Michigan Civil Service Commission approved the use BFOQs, which ensured that only women would be employed for certain positions.  Plaintiff, a male guard, filed suit alleging that the Department’s application of the BFOQs was overbroad and improperly denied him, and other men, opportunities for various job assignments and overtime work.  Plaintiff alleged that the BFOQs were applied in bad faith, relying on evidence that, for example, the Department administration “had inserted strip searches as core duties in most positions in order to deny those assignments to male offices.” Id. at 3.

Plaintiff moved for class certification and the trial court granted the motion without oral argument, instead deciding the motions solely upon the written submission of the parties.  The trial court found that Plaintiff satisfied the requirements for class certification.  Defendant moved for reconsideration, arguing that the trial court erred by granting the motion without oral argument and without providing specific finding on the requirement for class certification.  The trial court denied the motion, stating that it had adopted Plaintiff’s pleadings to set forth the basis for the granting of class certification. Defendant appealed, arguing that Plaintiff failed to establish the requirements for class certification.

The Decision Of The Court Of Appeals

The Court of Appeals reviewed the requirements for class certification under MCR 3.501(A)(1): numerosity, commonality, typicality, adequacy, and superiority.  It found that the 87 potential class members satisfied the numerosity requirement. Next, the Court of Appeals found that the commonality and typicality requirements were satisfied easily because determining whether the Department used BFOQs in the manner alleged by Plaintiff would “resolve any issue that is central to the validity of each of the claims. . .” Id. at 4. Regarding the adequacy determination, the Court of Appeals was not convinced that the fact that certain class member may have had antagonistic or conflicting interests, because they may have been in competition for the same job assignments, to be compelling because the class members’ claims were not highly individualized as they all relied on a common contention. The Court of Appeals ultimately found that any potential conflict did not did “not affect the crux of the class members’ contention — the Defendant is improperly applying the BFOQs.” Id.

Finally, regarding superiority, the Court of Appeals held that over 80 actions “all seeking to show that Defendant pursued a specific discriminatory policy or practice based on the same evidence would be unnecessarily duplicative and would place needless demands on the resources of the court system,” and potentially lead to inconsistent adjudications. Id. Given these findings, the Court of Appeals concluded that a class action was the superior form of proceeding with the litigation.  On this basis, the Court of Appeals held that the trial court did not err in finding that Plaintiff had established the requirements for class certification.

Implications For Employers

This case is a reminder that cases seeking to certify a class of individuals affected by a common policy, such as BFOQs, are difficult to attack using a framework underWal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). The uniformity of the job requirement makes BFOQs and other, similar types of uniform policies highly susceptible to certification, and difficult to attack on appeal.