How to Avoid Rule 23 'Commonality' in Class Action Employment Litigation

One way employers seek to defeat class certification is by claiming that their employment decisions are decentralized and left largely (if not entirely) to the discretion of local management, thereby precluding the kind of commonality among putative class members that is necessary under Rule 23. However, some courts have certified broad classes spanning multiple facilities and job titles notwithstanding the presence of decentralized decision-making. These courts have held that, in decentralizing the decision-making process, the employer permits local managers to rely on overly subjective decision-making criteria, which results in discriminatory employment actions. In other words, ironically, the absence of centralized decision-making is treated as a factor that unifies the claims of the class members.

This article assesses whether and to what extent employers can defeat class certification based upon the existence of a decentralized, subjective decision-making. After surveying the pertinent case-law in the Second, Third, Sixth, Seventh and Ninth Circuits over the past 10 years, we offer practical guidelines that employers may use to avoid the certification of broad classes.