Here’s a fact. No two disabilities even the same ones are the same. Accordingly, it makes perfect sense that the ADA requires an individual analysis throughout. Further, under both title I and title II of the Americans With Disabilities Act, in addition to having a disability, the person must be qualified. That is, capable of performing the essential functions of the job with or without reasonable accommodations with respect to title I. Or, with respect to title II, capable of meeting the essential eligibility requirements with or without reasonable modifications. Title III does not have any such “qualified,” language, but a similar analysis has to occur because you have to assess whether the nature of the business is being fundamentally altered. It is for all these reasons that class actions involving persons with disabilities are going to be extremely difficult, if not almost impossible, to pull off. Let’s take a look at the case law to see why this is the case.

Class actions are governed by Federal Rules of Civil Procedure 23(a),(b). Under that rule, the party seeking certification as a class has to demonstrate that: 1) the class is so numerous that joinder of all members is impracticable; 2) there are questions of law or fact common to the class; 3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and 4) the representative parties will fairly and adequately protect the interests of the class. Once that is done, the proposed class has to satisfy at least one of three requirements in federal rule 23(b). Those requirements allow the class to be maintained in any of three different circumstances: 1) where prosecuting separate actions by or against individual class members creates a risk of either inconsistent or varying adjudications or adjudications that, as a practical matter, would be dispositive of the interests of the other members who are not parties to the individual adjudications or which would substantially impair or impede their ability protect their interests; 2) where the party opposing the class has acted or refused act on grounds applicable generally to the class so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; 3) where questions of law or fact common to class members predominate over any questions affecting only individual members and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.

Before moving further, when the EEOC brings an enforcement action, they are not subject to rule 23. See General Telephone Company v. EEOC, 446 U.S. 318, 320, 333-334. That said, prior to bringing suit, the EEOC must conciliate (that is give the opposing party a chance to resolve the claims). There is a conflict among the circuits as to how far the EEOC must go in conciliating the claim prior to bringing suit. In the Sixth Circuit, all the EEOC has to show is that they made a good-faith effort to conciliate the claim they are asserting, thereby providing the employer with ample notice of the prospect of suit. Serrano v. Cintas Corporation 699 F.3d 884, 904 (6th Cir. 2012). However, in the Eighth Circuit, the law is quite a bit different. The Eighth Circuit found a clear and very significant distinction between facts that are gathered during the scope of an investigation and the facts that are gathered during the discovery phase of an already filed lawsuit. Therefore, the Eighth Circuit said that the EEOC cannot use discovery and a resulting lawsuit as a fishing expedition to uncover more violations. EEOC v. CRST Van Expedited, Inc., 679 F.3d 657, 675 (8th Cir. 2012). In short, the Eighth Circuit said that the EEOC had the responsibility of making a reasonable investigation of the charge. Id. at 676. To phrase it another way, in the Eighth Circuit, an argument can be made that each claim of class members must be reasonably investigated before they can become part of a subsequent suit. The difference between the two approaches is rather stark and presents a conflict among the circuits. Will the Supreme Court be asked to step in? It isn’t clear. Also, considering the hostility that the United States Supreme Court can display towards the EEOC, the EEOC may not feel it is in its interest to appeal to the United States Supreme Court. Finally, I attended the national convention of the EEO section of the labor and employment action of the American Bar Association in the spring of 2013. At that conference, the EEOC commissioners indicated that the message of the Eighth Circuit was being heard and that they were going to work hard to improve the investigation process. Thus, I am not sure you will see this go to the United States Supreme Court. Do expect to see developments with respect to the EEOC investigation process.

However, if you are not the government carrying out an enforcement action, you have to deal with rule 23 of the federal rules of civil procedure. The class action world changed in June 2011 with the decision of the United States Supreme Court in Wal-mart stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). In particular, focusing on the commonality requirement of class action litigation, the United States Supreme Court made several statements that are very problematic with respect to persons with disabilities being able to prosecute class actions. First, in a series of sentences all on the same page they said that commonality requires a plaintiff to demonstrate that the class members have the same injury. Second, there must be a common contention and that common contention must be capable of class wide resolution, which means a determination of the truth or falsity resolves an issue central to the validity of each one of the claims in one stroke. Finally, what matters to class certification is not the raising of common questions, but rather the capacity of the class wide proceeding to generate common answers apt to drive the resolution of litigation. All three of these critical statement can be found at Id. at 2551.

With respect to the same injury, I suppose you could have a class of people that were not hired or class of people that were wrongfully fired. With respect to the common contention, that is a lot more problematic with respect to people with disabilities because as mentioned above, a person with a disability must have a disability and also must be qualified as well. See Hohider v. United Parcel Service, Inc. 574 F.3d 169, 192 (3d Cir. 2009) (while she did not write the opinion, Justice O’Connor, sitting by designation, was part of this panel that wrote the decision). Finally, with respect to generating common answers, that individual analysis required by the ADA (whether it be under the qualified language of title I or title II or whether it be trying to determine a fundamental alteration under title III), necessarily means that you will not have common answers.

Typicality is also going to present problems in the typical ADA case. The typicality requirement is met if the class representative’s claims are generally the same as those of other class members both with respect to the legal theory at hand and with respect to the factual circumstances underlying the theory. Semenko v. Wendy’s international, Inc. 2013 WL 1568407, *8 (W.D.Penn. Table 12 2013). Typicality is typically measured through a three part test that looks at: whether the representative’s claims are generally the same as the class members claims with respect to both the legal theory at issue and the underlying facts; whether the class representative is subject to a defense that may not be alleged against many other class members and that may become a major issue in the litigation; and whether the class member representative’s interests are sufficiently aligned with other class members. Id. Again, the nature of the ADA is such, that it’s going to be extremely difficult to meet the typicality requirement as well for several reasons. First, each ADA inquiry is by its very definition highly individualized and the facts involving one person may be on key particulars different from the facts involving other class members. Id. at *8.

Second, it is quite possible that class members may be subjected to different defenses. For example, judicial estoppel per Cleveland v. Policy Management Systems Corporation , 526 U.S. 795 (1999), statute of limitations, and whether an accommodation is reasonable or not, may all differ depending upon the class member and the particular facts base by that class member.

Third, what class members want may vary from situation to situation. Some, may want to return to work, others may want specific accommodation, and yet others may want to transfer. All of those are very fact specific inquiries.Semenko at *9.

Finally, the individual inquiries necessitated by the ADA also make satisfying Rule 23(b) of the federal Rules of Civil Procedure extremely difficult even if somehow the person with a disability could have their class get by federal Rules of Civil Procedure 23(a). After all, since everything is so individualized, it would be hard to argue that the adjudication would be inconsistent since it is all turning on its own facts. Also, it would be hard to argue that an individualized decision would also be dispositive of the interest of other members not parties again because of the individualized factual determination necessary in ADA litigation. It would also be hard to argue, again, because of the individualized determinations required, that question of law or fact common to class members predominate over any questions affecting only individual members. Lastly, if monetary damages are involved, that necessarily requires an individual determination.Semenko at **10-11.

So is a class certification even possible anymore? It may be possible if people have a common disability or a common requested accommodation Id. at *8, though I am skeptical about the common disability even making the cut, since people with the same disabilities can be very different from each other. What about a pattern or practice claim, such as a 100% return to work healed policy seen in Powers v. USF Holland Inc. and Hohider v. United Parcel Service, Inc.. Even that may be problematic because according to the Third Circuit you still would have to figure out whether the individual claiming discrimination had a disability and was able to perform the essential functions of the job with or without reasonable accommodations, an individualized fact inquiry. Hohider 574 F.3d at 195. The only out may be a “regarded as,” claim. That is, you would have to argue that if an employer regards a person as having a disability, the otherwise qualified analysis does not apply because a person who is regarded as having a disability is not entitled to a reasonable accommodation. Further, to show that a person has been regarded as having a disability, that person only has to show a physical or mental impairment and not whether physical or mental impairment which substantially limiting; therefore, the otherwise qualified argument does not apply and a class action could proceed since the individualized determinations are therfore not critical when the class is limited to those who have been regarded as having a disability.

In summary, the EEOC since they do not have to deal with federal Rules of Civil Procedure rule 23 is going to have a better shot with respect to “class action” litigation. Even so, they well may have to investigate in a reasonable way each of the claims that they use as part of the “class action.” With respect to individuals, it is going to be extraordinarily tough for individuals with disabilities to maintain class actions. Even if they allege a “pattern or practice,” they are still going to have to deal with the “qualified,” problem. Hohider 574 F.3d at 196.

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