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There’s Strength in Numbers–and Your Employer Knows It

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One of the latest hare-brained proposals currently under consideration by Congress is the “Class Action Fairness Act of 2003.” (House version/Senate version). While class action fairness may sound like a good idea, the bill as written promises anything but fairness to class action litigants. Maybe they should call it the “Fairness to Businesses Hit with Class Actions Because of Widespread Discriminatory and/or Illegal Employment Policies Act.” I guess that would be too long, however–not nearly as catchy.

When many different people have similar complaints against an employer, courts can allow a class action lawsuit to go forward on behalf of all affected employees, rather than having multiple individual lawsuits. This saves court time by allowing a single judge to hear all the concerns at the same time, and come to one settlement (or decision by a jury) for all parties. Class actions are therefore essential to the enforcement of our nation’s civil rights laws, since they are often the only way that individual employees can challenge discrimination. For example, if your employer has a policy of not interviewing disabled employees for open positions, it’s often easier to prove that there was a policy that adversely affected a number of disabled employees, rather than for one individual employee to prove why he or she was not hired. Or if layoffs or changes in pension benefits primarily affected older workers, a large group of employees can come together to challenge the way layoffs were administered or the reasons for age-based changes to a pension plan, rather than proving in a number of individual lawsuits that each individual affected was harmed by the changes that were made. Class actions can save courts, lawyers, and the parties involved a great deal of time and money.

The point of the proposed bills is to make it much more difficult and costly for class actions to be brought. Why is that? Because they have been too successful. Sometimes the only way that employees can stand up to more powerful corporations is to act collectively, as they may have too little at stake individually for an attorney to be able to pursue their cases. Employers know this, so restricting class actions is a good way to prevent employees from having any remedy against discriminatory and illegal employment practices. Bringing a class action is already a very difficult and costly proposition, and most lawyers who represent employees shy away from the challenge. The amount of time and effort necessary to build the proof necessary to proceed with a class action suit is far too burdensome for most small law offices and solo practitioners, so only a few firms nationwide specialize in this type of case. Making the process even more difficult means even fewer employees will be able to challenge discriminatory practices.

One of the bill’s provisions will move most class actions from state court to federal court. Why is this important? One reason is that federal court litigation can be more complex and costly, and there are a number of rules applicable in federal courts that most states have not yet adopted that make litigation in federal court more time-consuming and expensive. An even more important reason is that juries in federal courts are drawn from larger geographic areas (sometimes all or most of a state) than juries in state court, which are limited to the county or local geographical subdivision served by the court. Supporters of the “Fairness” Act want to prevent some local juries and judges from deciding whether or not to hold businesses responsible. Not coincidentally, most of the areas proponents have identified as plaintiff-friendly “judicial hellholes” are counties where most of the citizens are black and Hispanic. Proponents express concern that juries composed of these citizens tend to decide cases based on “rhetoric and emotional appeals” rather than “focus[ing] on individual responsibility.” Finally, federal courts are already overburdened, with federal judges complaining about the ever-increasing caseload, while litigants wait months or years to have their cases heard. Adding a new set of complex cases is not going to improve the problem.

Yet another provision would prevent settlements that provide named plaintiffs full relief for their claims. Now, for example, a named plaintiff (called the class representative) who sues an employer can receive a full award of back pay, and in certain cases, receive a court order placing him or her in the job denied because of discrimination, while also affording all members of the class the opportunity to share in available relief. The proposed bill however, denies courts the ability to approve settlements that allow a greater share of relief to a class representative than all members of the class. If an individual must give up the right to full relief in order to protect other members of the class, no one will want to become a class representative, and fewer class actions will go forward.

The Class Action Fairness Act will be considered by the Senate Judiciary Committee on Thursday, April 3, and once it passes out of that committee, can be considered by the full Senate. The bill has not yet seen any action in the House of Representatives, but could move soon, especially if the Senate is successful at moving the bill ahead. We need you to oppose this bill. Even if you are not currently part of a class action lawsuit, you never know when your employer’s practices might make this kind of lawsuit the best way for you to respond. You may have no way to fight back other than an individual lawsuit if this bill passes, so it’s important that you respond.

Take Action Now: OPPOSE THE CLASS ACTION “FAIRNESS” ACT!


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