In July 1969, General Telephone Company of the Southwest hired Mariano Falcon, a Mexican-American, as part of minority recruitment effort. Falcon maintained a good employment record until, “[i]n October 1972 he applied for the job of field inspector; his application was denied even though the promotion was granted several white employees with less seniority.” Dissatisfied with being passed over, Falcon filed a charge with the Equal Employment Opportunity Commission, which promptly granted him a right-to-sue letter.
Falcon filed his lawsuit as a class action, alleging discrimination not just in General Telephone’s promotion practices (sensible, since he had been passed over for promotion), but also in its hiring practices. After General Telephone responded to his interrogatories, Falcon moved to certify a class of all employees or potential employees. (This was an “across the board” challenge to Falcon’s employment practices, a tactic that the Fifth Circuit allowed at the time.)
The trial court certified the class without conducting a hearing. It then conducted a trial of the liability issues, which resulted in a finding of that General Telephone had discriminated against Mexican-Americans in its hiring–but not its promotion–decisions. Both sides appealed the ruling; General Telephone because the hiring claim had been certified, and Falcon because his hadn’t been.
The Supreme Court granted certiorari “to decide whether the class action was properly maintained on behalf of both employees who were denied promotion and applicants who were denied employment.” In an 8-1 opinion , (Chief Justice Burger concurred in part and dissented in part), it held that the answer was “no.”
Justice Stevens began his opinion by noting that
The class-action device was designed as an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only. Class relief is peculiarly appropriate when the issues involved are common to the class as a whole and when they turn on questions of law applicable in the same manner to each member of the class. For in such cases, the class-action device saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion under Rule 23.
(Internal quotations omitted.)
Justice Stevens’s opinion primarily addressed the problem that Falcon’s claim was not the cause of action certified for class treatment. As a result, he was an atypical class representative.
We have repeatedly held that a class representative must be part of the class and possess the same interest and suffer the same injury as the class members.
(Internal quotations omitted.) In fact, Justice Stevens held
Conceptually, there is a wide gap between (a) an individual’s claim that he has been denied a promotion on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual’s claim and the class claims will share common questions of law or fact and that the individual’s claim will be typical of the class claims.
The Court also found that the trial itself showed class treatment wasn’t appropriate.
Instead of raising common questions of law or fact, respondent’s evidentiary approaches to the individual and class claims were entirely different. He attempted to sustain his individual claim by proving intentional discrimination. He tried to prove the class claims through statistical evidence of disparate impact. Ironically, the District Court rejected the class claim of promotion discrimination, which conceptually might have borne a closer typicality and commonality relationship with respondent’s individual claim, but sustained the class claim of hiring discrimination. As the District Court’s bifurcated findings on liability demonstrate, the individual and class claims might as well have been tried separately.
Falcon is particularly important right now given that the Supreme Court is deciding Wal-Mart v. Dukes. The composition of the Court has changed, so this case does not provide a guide to how the current Court will rule on Dukes. But both parties relied on Falcon in their briefing, so it is particularly important to remind ourselves how the Court has ruled in previous employment class actions. Just because the plaintiff has alleged discrimination does not mean that he has alleged a claim that can be established with classwide proof.