Post Wal-Mart Ruling in U.S. v. City of New York

In the case of U.S. v. City of New York, United States District Judge Nicholas Garaufis, in the Eastern District of New York, rejected defendant New York City’s attempt to de-certify a class of black firefighters in their suit alleging race discrimination in hiring procedures. The City unsuccessfully relied on the Supreme Court’s recent ruling in Wal Mart v. Dukes, in which the Court more strictly limited the parameters for certifying class actions.
The Supreme Court held in Wal-Mart that there must be a “common question” of law or fact that “must be of such a nature that it is capable  of class-wide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” In U.S. v. City of New York, the court found there to be four common questions, which are “whether Defendants” uses of [the written examinations] had a disparate impact upon black applicants for the position of entry-level firefighter; whether Defendants’ uses of those examinations were job related to the position in question and consistent with business necessity; whether alternative practices that satisfy the asserted business necessity without disparate effect are available; and whether Defendants engaged in a pattern or practice amounting to intentional discrimination.” Importantly, this court also cites to a 2nd Circuit case from 2006, finding that “for purposes of Rule 23(a)(2) [class certification] even a single common question will do.”
Why were the plaintiffs in this case permitted to maintain their class status, while the plaintiffs in Wal-Mart lost theirs? It boils down to the breadth of the scope of the class. In Wal-Mart, the class was essentially every woman, regardless of position or geographic location, employed by a company that has many different classes of employee, ranging from greeters paid on an hourly basis to salaried managers. The Wal-Mart court essentially found that there was not a common issue of law or fact between a store greeter working in a rural Arkansas location and an assistant store manager working in a Californian urban location, especially given the lack of evidence in that case.
Judge Garaufis in this particular case was confronted with no such issue. The class was limited to only black firefighters and firefighter applicants who sat for one of two specific written exams, and who were harmed by the City’s use of a pass/fail screening device with specific cutoff scores or a method of rank-order processing. Compared with the very broad class in Wal-Mart, which included all women who were harmed by a vague and lightly-evidenced “culture” of sexist discrimination, the class considered in this case is very narrowly tailored and easily meets the statutory requirements.
This case is likely the first of many that will demonstrate that Wal-Mart applies most forcefully to cases that push the boundary in terms of how broad a class should be. For the majority of class actions that specify classes based on specific and tailored criteria, Wal-Mart should not pose a major threat to plaintiffs going forward.