Fourth Circuit Orders Class Certification for African-American Steelworkers—Again
For the second time, the Fourth Circuit has determined that African-American employees at a South Carolina steel plant are entitled to Rule 23 class certification. In Brown v. Nucor Corporation and Nucor Steel-Berkeley, Plaintiffs originally sought class certification for alleged discriminatory job promotion practices and a racially hostile work environment in their suit against Nucor Corporation and Nucor Steel-Berkeley, operators of a steel plant in Huger, South Carolina, where putative class members worked across multiple departments. In 2007, the United States District Court in Charleston, South Carolina, denied plaintiffs’ motion for class certification. The Fourth Circuit reversed the ruling in 2009, vacating and remanding the case with instructions to the District Court to certify the class as to both claims.
After the U. S. Supreme Court issued its Wal-Mart v. Dukes opinion in 2011 (holding that Rule 23 class certification was not appropriate for Wal-Mart employees in different store locations and under different managers), , the Nucor District Court decertified the class of steelworkers with regard to the job promotions claim but not the hostile work environment claim. The District Court held that the plaintiffs failed to present a common issue of discrimination in light of the discretionary and multi-layered decision-making structure.
Plaintiffs appealed the decertification, and the Fourth Circuit recently reinstated the job promotions class. The Fourth Circuit reasoned that the plant’s promotions system “created an environment in which the discriminatory exercise of discretion by one department head harmed the promotions opportunities for all African-American workers at the plant by foreclosing on opportunities in that department and generally impeding upward mobility.” Therefore, the Appeals Court opined, the District Court had “fundamentally misapprehended the reach of Wal-Mart and its application to the workers’ promotion class.”
The Fourth Circuit’s order reinstating the class distinguishes the instant case from Wal Mart v. Dukes on several grounds. First, while the Wal-Mart plaintiffs failed to show discrimination on a store-by-store basis for a class that could have amounted to over a million employees, the instant class only has as many as 150, all in a single plant. Second, the plaintiffs’ statistical expert in Wal-Mart could not specifically determine how the allegedly pervasive gender-biased culture of Wal-Mart influenced individual employment decisions. Here, the plaintiffs’ statistical expert identified a statistically significant disparity in promotions of African-American workers. Next, the Fourth Circuit reasoned that the anecdotal evidence in the instant case was “substantially more probative’ than that in the Wal-Mart case. The Court reasoned that, even after Wal-Mart v. Dukes, a “pattern of discrimination, revealed through statistics and anecdotal evidence, can alone support a disparate treatment claim, even where the pattern is the result of discretionary decision-making. To hold otherwise would dramatically undermine Title VII’s prophylactic powers.”
The Brown v. Nucor Corporation ruling indicates that Wal-Mart v. Dukes did not necessarily whittle down Title VII class actions to a single decision-maker or single department class. If a class can identify a systemic practice—even something vague like the exercise of discretion—Rule 23 certification is plausible.