In previous posts we have emphasized the importance of class actions to individuals seeking to enforce their rights against more powerful corporations, most recently in "Abbey Spanier Comments on the Harm to Individuals Caused by Pre-Dispute Arbitration Clauses." As we posted in "Can You Bring an Employment Discrimination Class Action?," there are even some types of lawsuits that can only be brought as class actions in most jurisdictions. These lawsuits known as "pattern-or-practice" claims of employment discrimination allege that an employer's "standard operating procedure" is discriminatory. In July, the Second Circuit joined the other circuits to have ruled on the issue and held that private individuals can only bring pattern-or-practice claims in the form of class actions. See Chin v. Port Auth. of N.Y. & N.J., Nos. 10-1904-cv & 10-2031-cv, 2012 U.S. App. LEXIS 14088, at *30-31 (2d Cir. July 10, 2012).
As noted in our post "Can You Bring an Employment Discrimination Class Action?," last year a magistrate judge in the Southern District of New York (SDNY) denied a motion to compel arbitration of claims that an employer discriminated against women where the employees brought "pattern-or-practice" claims against their employer. In Chen-Oster v. Goldman, Sachs & Co., 785 F. Supp. 2d 394, (SDNY 2011), Judge Francis found that compelling individual arbitration would deny the plaintiffs the opportunity to vindicate substantive federal statutory rights because "Title VII, as construed in the case law, makes substantively distinct claims available to those victims of alleged discrimination proceeding individually and those proceeding as a class." Id. at 409-10. Thus in the case of pattern-or-practice claims, class actions are not merely procedural devices.
The defendants have appealed the denial of their motion to compel individual arbitration to the Second Circuit Court of Appeals. The importance of this issue has resulted in a number of amicus briefs including one submitted by The National Employment Lawyers Association (NELA), together with a number of other organizations including the National Employment Law Project (NELP) and the NAACP Legal Defense and Education Fund. As the brief articulates, "[b]ecause remedies for pattern-or-practice violations are designed to eradicate discrimination at its source, rather than merely provide piecemeal relief to redress individual instances of discrimination that are symptomatic of underlying discriminatory practices, they are critical to achieving Title VII's broad remedial purposes." Brief of Amici Curiae National Employment Lawyers Association, et al., in Support of the Plaintiffs-Appellees and Affimance at 10-11, Parisi v. Goldman, Sachs & Co., No. 11-5229-cv. (2d Cir. July 2, 2012). Moreover what a plaintiff must prove to establish a pattern-or-practice claim differs from what she must prove to establish an individual claim. Because the right to bring pattern-or-practice claims is a substantive one the Second Circuit should uphold the lower court. Employers should not be permitted to escape liability for maintaining a workplace where discrimination is the "standard operating procedure" by requiring their employees to sign away their right to bring pattern-or-practice claims under federal antidiscrimination statutes.
If you believe that you have been the victim of a pattern or practice of discrimination, tell us your story.
Lexis.com subscribers can access the Lexis enhanced version of the Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135 (2d Cir. 2012) and Chen-Oster v. Goldman, Sachs & Co., 785 F. Supp. 2d 394 (S.D.N.Y. 2011) decisions with summary, headnotes, and Shepard's.
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