Third Circuit Requires Determination of Whether ADA Plaintiffs are “Qualified” Before Class Certification
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On July 23, 2009, in Hohider v. United Parcel Serv., Inc., No. 07-4588 (3d Cir. July 23, 2009), the Third Circuit reversed a district court order certifying a nationwide Americans with Disabilities Act (”ADA”) class action. In this seminal decision, the Third Circuit made it more difficult for plaintiffs to certify ADA class actions.
In Hohider, the Third Circuit held that the district court erred by concluding that it could certify the class by deferring its analysis of whether the members of the class had proved that they are both disabled and otherwise qualified to perform the essential functions of the job in order to prove discrimination under the ADA until the second “remedial” stage of the two-stage framework described in International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977). The Third Circuit reiterated the requirement that district courts engage in rigorous analysis of the elements of the claim in analyzing Rule 23 class certification issues, including conducting a preliminary inquiry into the merits as necessary to make the determination. The Third Circuit also emphasized the importance of trial courts evaluating how a certified class would manageably be tried before granting certification.
Plaintiffs alleged that UPS had company-wide policies that violated the ADA, including a “100% healed” policy prohibiting employees from returning to work unless they could return to their last position without any medical restrictions. In certifying the ADA class, the district court relied on the Teamsters framework as it has been applied in the Title VII context, where plaintiffs’ burden at the “liability” stage is to establish a prima facie case that the employer engaged in an unlawfully discriminatory pattern or practice, and particular plaintiffs’ entitlement to individual relief is not examined unless the case reaches the second “remedial” stage. The district court therefore removed from the proposed class definition the requirement that class members be “disabled” under the ADA because this determination might “entail individualized inquiries.”
The Third Circuit noted that the ADA’s prohibitions are narrower than Title VII’s because “[i]n contrast to Title VII, it does not prohibit discrimination against any individual on the basis of disability, but, as a general rule, only protects from discrimination those disabled individuals who are able to perform, with or without reasonable accommodation, the essential functions of the job they hold or desire.” Thus, the appeals court reasoned that the district court must ask if the person was qualified to perform the job held or desired, with or without reasonable accommodation, even if the decision was based on disability. Absent such qualification, no liability accrues. Thus, the potential first stage liability finding contemplated by Teamsters cannot be made without determining if the class members are qualified under the ADA. The Third Circuit criticized the district court for losing sight of the requirement that the statutory elements of the claim, not the Teamsters evidentiary framework, “controls the substantive assessment of what elements must be determined to prove a pattern or practice of unlawful discrimination.”
The Hohider decision also addressed several aspects of Rule 23(b)(2) certification. The appeals court confirmed that compensatory and punitive damages are incompatible with claims for class treatment under Rule 23(b)(2). Although the Third Circuit did not decide whether monetary relief could be separated from injunctive relief for class certification under Rule 23(b)(2), it made clear that district courts cannot rely on Rule 23(c)’s provisions allowing modification of class certification orders as a way to avoid the rigorous analysis required under Rule 23 at the class certification stage. Similarly, the appeals court ruled that the district court’s conditional certification of plaintiffs’ request for back pay was not supported by the required analysis, and constituted an abuse of discretion.
The Hohider decision is important for employers not only because of the reinforcement of the rigorous analysis requirement under Rule 23, but because of the requirements it imposes for private plaintiffs seeking to bring ADA class actions, even under the broader definitions of disability in the ADA Amendments Act (ADAAA). Although the court declined to decide whether the ADAAA should be retroactively applied to the claims, it noted that even if the ADAAA applied, its finding that the class was improperly certified would not change because the ADAAA retains the requirement that a plaintiff be “qualified” in order to state a claim of discrimination.