Class actions

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By Michael R. Masinter, Professor of Law, Shepard Broad Law Center, Nova Southeastern University

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It's difficult to overstate just how disastrous a decision the U.S. Court of Appeals for the Eleventh Circuit recently issued regarding the Americans with Disabilities Act (ADA). The Eleventh Circuit ruling dismissed a lawsuit challenging a Florida county's lack of voting machines for disabled individuals. That decision, American Association of People with Disabilities v. Harris, holds that a violation of Title Two regulations enacted pursuant to an express grant of rulemaking authority cannot be the basis for a claim asserting a violation of Title Two's various prohibitions, and does so largely by relying on Alexander v. Sandoval.

Sandoval forbade private enforcement of Title VI disparate impact regulations because Title VI of the Civil Rights Act of 1964 is spending clause legislation that SCOTUS previously had construed only to forbid intentional discrimination. Because under the Roberts and Rehnquist Courts spending clause statutes were not ordinarily privately enforceable, those that are privately enforceable must, we are told, contain within the statute the source of potential state liability to private parties given the contractual nature of liability - it arises from accepting federal funds, so states must know what comes with the money, and they know from the statute, not from regulations later enacted, what can expose them to liability by accepting that money. Since Title VI only forbade intentional discrimination, disparate impact claims relying on regulations could not be said to be claims for a violation of Title VI, and therefore the regulations, even if valid, were not privately enforceable.

Leaving aside everything that is wrong with the Court's treatment of spending clause statutes, Title Two of the ADA isn't spending clause legislation, it is legislation enacted under section five of the Fourteenth Amendment, which gives Congress express authority to impose federal law on states irrespective of whether they accept federal dollars. Congress legislates under section five as a sovereign, not as a dispenser of federal money.

More than a year after oral argument, a narrowly divided federal appeals court affirmed certification of the largest class action in American history. In Dukes v. Wal-Mart, more than one million potential plaintiffs are suing the retailer for gender discrimination. 

"The lawsuit, brought in 2001, accuses the retailer of systematically paying women less than men, giving them smaller raises and offering women fewer opportunities for promotion," The New York Times reports. "The plaintiffs stressed that while 65 percent of Wal-Mart's hourly employees were women, only 33 percent of the company's managers were." 

Considering the case en banc, the U.S. Court of Appeals for the Ninth Circuit sided with the plaintiffs by a vote of 6-5. Casting the deciding vote was Clinton appointee Judge Susan Graber, who wrote in concurrence, "If the employer had 500 female employees, I doubt that any of my colleagues would question the certification of such a class. Certification does not become an abuse of discretion merely because the class has 500,000 members."

The Recorder reports: 

Judge Michael Daly Hawkins wrote Monday's majority 9th Circuit opinion, joined by Graber and Judges Stephen Reinhardt, Raymond Fisher, Richard Paez and Marsha Berzon. All were appointed by Democrats.