Document Type



Berkeley Journal of Employment and Labor Law




The Civil Rights Act of 1991, which provides compensatory and punitive damages and attendant jury trials in cases alleging intentional discrimination, was designed to enhance enforcement and expand remedies. Its enactment, however, has triggered a schism among the circuit courts over what the proper standard is for determining whether monetary damages or injunctive relief predominates, a necessary inquiry for determining whether plaintiffs are entitled to class certification for Title VII claims under Rule 23(b)(2) of the Federal Rules of Civil Procedure. Led by the Fifth Circuit, some federal appeals courts contend that monetary relief predominates unless it is “incidental,” and that compensatory and punitive damages are by “nature” not incidental. On the opposite end of the spectrum is the Second Circuit’s standard - adopted by the Ninth - which permits the courts to use a flexible “ad hoc” approach when determining predomination. This article contends that should the Supreme Court accept the narrow incidental interpretation of the predomination requirement, employees fighting systemic intentional discrimination will be denied one of the most powerful weapons in their arsenal for justice - the class action.

For decades, Title VII class actions have resulted in extensive reforms in employers’ policies and millions of dollars in equitable monetary relief for thousands of employees nationwide. However, this traditional means of enforcement has come under attack. Specifically, the restrictive incidental interpretation diminishes the number of class actions, deprives employees of full relief, and imposes greater costs and burdens on those employment discrimination class actions that do survive. Deterrence and fairness are also undermined.

The ad hoc approach, on the other hand, respects the courts’ discretion and properly reconciles the goals of the Civil Rights Act of 1991 and Rule 23. The ad hoc approach’s flexibility allows plaintiffs to seek full relief, while enjoying due process protections available through hybrid certification and discretionary notice and opt-out rights. Furthermore, the Class Action Fairness Act of 2005 and recent amendments to Rule 23 curb potential judicial abuse, and confirm the propriety of allowing federal courts wide latitude in making class certification determinations. Consequently, when the Supreme Court has the occasion to consider the propriety of the Rule 23(b)(2) predomination test, it should embrace the ad hoc balancing test to preserve this essential civil rights enforcement tool - the class action. This article is part of a series examining the impact of procedure on civil rights.