On February 5, 2019, the U.S. District Court certified a class of employees challenging their employer’s company-wide Fitness-for-Duty (“FFD”) program in Harris, et al. v. Union Pacific R.R. Co., Case No. 8:16CV381. The issues in the case are similar to a disability discrimination class action that has been litigated since 2006 by Bryan Schwartz against the State Department, challenging the State Department’s Foreign Service policies that unlawfully screen out applicants with disabilities. See Meyer, et al. v. Clinton (Dept. of State), discussed on this blog here and here. The Harris decision is an important step toward courts recognizing that policies that discriminate based upon disabilities can be ideal for class-wide challenges – as we have argued on this blog and at the American Bar Association’s National Conference on Employment and Education Law Impacting Persons with Disabilities.
Union Pacific, the employer, has a FFD program that requires employees in certain positions to disclose specific health conditions. Union Pacific’s policies automatically exclude any employee who discloses one of these health conditions from employment and require them to have a fitness-for-duty evaluation. After the employee is evaluated, the records are sent to Union Pacific’s retained medical professional, Dr. John Holland in Olympia, Washington, where Dr. Holland and his staff make all decisions regarding who is fit for duty. Dr. Holland and his staff do not conduct physical evaluations, and Union Pacific routinely ignores the medical opinions of outside doctors.
Plaintiffs and the Class are previous or current employees of Union Pacific. Despite working for years for Union Pacific with no performance problems, many of the Class members were pulled from their jobs under Union Pacific’s FFD program, and then excluded from their positions by Union Pacific, even though they had no problem fulfilling the essential functions of their jobs. Plaintiffs and the Class specifically challenge Union Pacific’s “1% Rule”–the standard policy used by Dr. Holland to find employees unfit for duty if the employee’s disclosed health condition has a risk of sudden incapacitation greater than 1% in the coming year. Plaintiffs assert three class claims under the Americans with Disabilities Act: (1) disparate treatment – pattern or practice of discrimination by implementing the FFD program in a manner that screens out individuals with disabilities; (2) disparate impact – the FFD program has an adverse impact on individuals with disabilities; and (3) unlawful medical inquiry – the FFD program’s policies are not job-related and consistent with a business necessity.
Plaintiffs moved to certify the class to include all individuals who have been or will be subject to Union Pacific’s FFD program as a result of a reportable health event since September 18, 2014 (the date the challenged FFD program was implemented) through the final resolution of the action.
In the Court’s analysis of Plaintiff’s motion, the Court found that Plaintiffs had easily met the numerosity requirement of Rule 23(a) by presenting evidence of potentially 7,000 class members. Harris, et al. v. Union Pacific R.R. Co., Case No. 8:16CV381, Dkt. 307 at pp. 5-6. For commonality, the Court rejected Union Pacific’s argument that each fitness-for-duty evaluation decision will vary based on the individual employee and individual job–finding that the challenged FFD policies are uniformly carried out nationwide by the same group of decision-makers (Dr. Holland and his staff). Id. at pp. 7-8.
The Court also held that Plaintiffs satisfied the typicality requirement of Rule 23(a) because all of the Class members are alleging discrimination claims against the same policies that have either resulted in the employees being discharged or constructively discharged by the “1% Rule.” Id. at pp. 8-10. Plaintiffs also satisfied the adequacy of representation required by Rule 23(a) by demonstrating common interest with the putative class and that, as class representatives, they will vigorously prosecute the interests of the class through qualified counsel. Id. at p. 10.
Finally, the Court conducted an analysis under Rule 23(b) to determine if “questions of law or fact common to class members predominate over any questions affecting only individual members”, and that a class action is the superior method for adjudicating the controversy at issue. Rejecting Union Pacific’s arguments that individual issues and facts predominate, the Court held that questions of law are common to the class and predominate over any questions affecting only individual members. Id. at pp. 12-13. Because of the common questions of law and facts regarding the putative class, the Court also found that a class action is the superior, efficient method for adjudicating these claims because they all rely on common proof.
The Court based its decision on the fact that Plaintiffs’ allegations demonstrate there are common central issues among the class that predominate over any other ancillary issues: namely, whether the company-wide fitness-for-duty program and uniformly applied “1% Rule” unlawfully discriminate against employees with disabilities. The Court also explained that class action prosecution is favored here, where the Plaintiffs are challenging a single cohesive policy using common proof and seeking common injunctive relief. The Court underscored that class action treatment is not prohibited just because some ancillary matters, like damages, vary among the Class, because they can be tried separately.
If you believe you have been subjected to disability discrimination by your employer, please contact Bryan Schwartz Law, P.C. today.
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