23(b)(2) Class Certification: Choosing an Approach for Certifying Civil Rights Discrimination Class Action Suits

Abstract

The passage of the 1991 amendments to the Civil Rights Act granted injunctive as well as monetary damages for impermissible discrimination in the workplace. The Act also created a tension with the last revision of the Federal Rules of Civil Procedure in 1966. This revision prohibits the certification of a class under Rule 23(b)(2) if the damages sought are predominantly monetary in nature. On one end of this resulting tension is the desire to protect individuals rights to opt-out of a class action suit and maintain future individual actions. On the other end is the desire for judicial economy and the possibility to have sweeping remedies in the form of injunctive or declaratory relief. This tension is not reconcilable at the present and has fueled the growth of a three-way circuit split over what standard should be used to decide the certification of a class action civil rights discrimination suit. I argue that the circuit split has presented some courts to provide a higher burden to alleged victims of civil rights discrimination, in direct frustration of Congress' legislative intent to compensate victims and give a punitive remedy against large companies that commit civil rights violations. I propose a burden-shifting solution to the circuit split that takes into account the interests of the parties in a class action suit as well as the effects of racial politics. I however advocate an appropriate and ultimate solution that revises the Federal Rule that clearly expresses an approach taking into account this tension.