• September 26, 2011

The 8th Circuit recently issued a major ruling in a significant class action race discrimination lawsuit in Bennett v. Nucor Corp Nucor is a large steel manufacturer with a production plant in Blytheville, Arkansas.  The plaintiffs initiated race discrimination claims against the company in 2003.   After the district court denied
the plaintiffs’ motion for class certification and dismissed their disparate
impact claims, the six individual plaintiffs tried their disparate treatment
claims to a jury and were each awarded $200,000 in damages.  Cross appeals resulted.

Much of the Court’s decision addresses evidentiary issues specific to this case.  There are, however, discussions of several points of interest to practitioners and others:

Evidence of Prior Acts: The 8th Circuit reaffirmed that the question of whether evidence of prior acts of discrimination against nonparties should be admitted is case specific and depends on many different factors, including how closely related the evidence is to the plaintiff’s circumstances and theory of the case.  In a hostile environment case, for example, evidence of prior acts of discrimination against nonparties may be probative of the type of workplace environment to which the plaintiffs were subjected, and of the employer’s knowledge and motives.   This is especially true where there have been prior EEOC investigations.

Class Certification: The Court affirmed the district court’s denial of certification under Rule 23 because of the lack of commonality among the plaintiffs.   Putative class representatives must demonstrate that a class action will generate “common answers” apt to drive the resolution of the litigation.  In a Title VII action, for instance, they must show that there will be a common answer to the question of “why was each plaintiff disfavored.”  Here, class certification was properly denied because the evidence indicated that decision-making in the company was decentralized and employment practices varied substantially across the plant; therefore, the diversity of employment practices within the company precluded a finding of commonality and typicality.

Disparate Impact:  Statistical evidence of causation in a disparate impact case must be of a kind and degree sufficient to show that the practice in question has caused the adverse action because of the plaintiffs membership in a protected group.
However, where an expert fails to identify any specific employment practices responsible for the alleged disparate impact decisions, and fails to show that each applicant was qualified for the position in question, his or her testimony will be insufficient to demonstrate disparate impact.

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