Seyfarth Synopsis: In Allen et al. v. AT&T Mobility Services, LLC, Case No. 1:18-CV-03730 (N. D. Ga. March 21, 2022), Plaintiffs alleged that AT&T, their former employer, discriminated against them and other pregnant sales associates with how it designed and implemented its attendance policies and related discipline system. Plaintiffs filed suit seeking damages and an injunction against these practices pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended by the Pregnancy Discrimination Act (“PDA”), 42 U.S.C. 2000e et seq. Plaintiffs brought a motion for class certification, which the Court denied on the basis that individualized inquiries were necessary to determine whether AT&T’s policies caused harm and/or damaged any potential Plaintiff, such that resolution of their claims on a class-basis would be impractical. This case is a must-read for employers facing class action discrimination claims and another addition to the emerging and developing law of pregnancy discrimination.
In Allen, the named Plaintiffs filed a putative class action alleging that AT&T discriminates against its non-managerial pregnant employees by implementing an absence policy (“SAG”) that disparately impacted such employees. Id. at 3. Under the SAG, unexcused absences garnered points, and discipline would follow from the imposition of those points. After accruing three to four points, retail workers become subject to progressive disciplinary action. The SAG and associated discipline policies operated without discretion to ensure consistency in attendance and discipline practices in all AT&T retail stores nationwide. Id.
Not all absences accrue points. The SAG policy delineates 13 categories of “excused” absences, such as leave under the Family and Medical Leave Act (“FMLA”), military leave, approved short term disability, and approved job accommodations. Id. at 5. Employees must request time off through an app at least one hour prior to their scheduled shift. The app requires employees to select a reason for the absence from various options, none of which include pregnancy. Id. at 6.
Employees may request excused absences due to their pregnancy or pregnancy-related conditions under the FMLA, and short term disability or approved job accommodations. While the FMLA includes incapacity due to pregnancy and prenatal care, it also requires employees to have worked at least 1,250 hours of service. Further, under AT&T’s short term disability policy, employees are required to submit their claims, including medical evidence, to a third-party for consideration and the policy does not cover medical conditions that do not rise to the level of a disability. The same limitations apply to approved job accommodations leave, which is available only to those with disabling conditions. Id. Thus, the essence of Plaintiffs’ claims was that AT&T disproportionately burdens pregnant employees compared to other employees to establish a basis for an excused absence. Id. at 7.
The Court’s Decision
The Court denied Plaintiffs’ motion for class certification. In addressing the four requirements of Rule 23(a) — numerosity, commonality, typicality, and adequacy — the Court concluded that each were satisfied. Id. at 12-19. The Court held that Plaintiffs established a common policy at issue, reduced to writing and centrally administered — the SAG — and identified common questions that were central to the case, such as whether the SAG has a disparate impact on pregnant workers, in that it disproportionately imposes discipline. The Court also held that the typicality requirement was satisfied, since Plaintiffs’ claims arose from the same course of conduct underlying the class claims — the SAG — pursuant to which pregnant workers were treated differently.
The Court rejected AT&T’s arguments to the contrary, including that Plaintiffs were not typical because they “knew how to obtain excuses for a pregnancy-related absence under the SAG, but merely ‘failed to act on that knowledge.’” Id. at 20. The Court explained “[b]ut Plaintiffs’ claims are that they were unable to successfully obtain excused absences and received discipline,” and “[t]hese asserted experiences with the SAG policy are allegedly typical of the experiences of the pregnant employees they seek to represent.” Id. The Court further held that the adequacy requirement was similarly satisfied — Plaintiffs “submitted evidence that support their contention that their unexcused absences were pregnancy-related, and that it is sufficient to meet their burden at the class certification stage.” Id. at 22.
The Court further analyzed whether the case could be certified under Rule 23(b)(3) or alternatively, Rule 23(c)(4). The Court held that Plaintiffs failed to demonstrate under the “far more demanding” predominance inquiry that the questions of law or fact common to class members predominated over any questions affecting only individual members. Id. at 23-24. The Court found that individualized issues — including whether a class member was absent from work; whether the absence was caused by an inability to come to work; whether that inability was pregnancy-related; and whether the employee informed or attempted to inform AT&T of that inability; and whether the employee sought an excuse for the absence — predominated in this case. Further, resolving the issue that the assessment of points even without a termination is an adverse employment action because points may limit the availability of transfers or promotions for a class member would “necessarily require the Court to assess facts and circumstances unique to each individual in the class.” Id. at 25.
Regarding Rule 23(c)(4), which states that “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues,” the Court agreed with AT&T’s position. Id. at 28. Specifically, the Court opined that the certification of a class on the issue of liability for any damages (compensatory or punitive) would not be appropriate due to the individual issues which would predominate whether and to what extent AT&T would be liable to any particular putative class member. Accordingly, the Court held that Rule 23(a)(4) should not be employed under the circumstances of this particular case. Id. at 29.
Implications For Employers
The ruling in Allen is noteworthy for employers as the latest in PDA class action litigation — a significant issue of concern for all employers. Indeed, pregnancy discrimination has been highlighted by the EEOC as an issue of focus in recent years. When plaintiffs attempt to certify classes with putative class members who were allegedly harmed by a common employment policy or practice, employers can point to Allen to illustrate why class treatment is still not appropriate. Though Plaintiffs were able to establish all four of the Rule 23(a) prerequisites, the lack of glue amongst all pregnant employees’ experiences relative to the SAG precluded them from certifying a class under the requirements of Rule 23(b).