In the vast majority of discrimination cases, there is little dispute over whether the plaintiff is actually in a protected group. For example, in sex discrimination cases, for the most part, they are either male or female; in age cases either over or under 40. Despite the demographic changes in the country, there are few disputes over whether even a plaintiff of mixed ancestry belongs in a particular group for purposes of race discrimination claims.
But disability claims are different. While with the ADAAA the definition of a disability has been expanded under federal law, there remain threshold questions of whether the plaintiff is even in a protected group. If so, there remain questions as to the extent of the disability and whether the plaintiff can perform the essential functions of the job. While there is a generally limited number of genders, races, and ages, there are likely hundreds of conditions that may be considered disabilities. Further, the admonition under most disability discrimination statutes includes the requirement of reasonable accommodation, one that virtually by definition requires an individual consideration of the plaintiff’s condition and job circumstances.
Because of these highly individualized inquiries, disability discrimination claims generally make poor candidates for class action claims, as a recent case from the Western District of Pennsylvania demonstrates. In Semenko v. Wendy’s International, Inc., Case No. 2:12-cv-0836 (W.D. Pa. Apr. 12, 2013), the plaintiff brought a putative class action against the Wendy’s fast food chain for alleged disability discrimination under federal and Pennsylvania law. With respect to her own claim, she contended that Wendy’s failed to accommodate her degenerative arthritis after her return for a leave of absence.
As an aside, while any disability may be difficult to treat on a class basis, degenerative arthritis is an especially hard condition as it differs greatly even among those who have it and, as the name reflects, changes over time even for one individual. The plaintiff further was not helped by a relatively vague class definition that simultaneously referenced accommodations after returns from leaves of absence and accommodations generally. Even during the course of briefing, she shifted her class definition to include reference to “permanent medical restrictions” and those who “applied for long-term disability benefits.” As suggested below, the plaintiff may not have aided her own cause by failing to have a clearer class definition.
In any event, the employer filed a Rule 12(f) motion to strike the class allegations without awaiting discovery. The court noted that such a motion could only be granted in “rare” cases, but in a welcome burst of common sense, found that it was facing just such a case. Citing the decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), it found no commonality due to the need to determine whether each potential class member was disabled and “otherwise qualified.” The need for the additional personalized inquiries under the ADA made such cases even less appropriate for class action treatment than those under Title VII. It similarly found that the claims would require consideration of whether the class member requested accommodations, the reasonableness of the proposed accommodations, undue hardship, and the ultimate question of whether the employer had discriminated against the individual. These inquiries undercut both the elements of commonality and typicality. Further, the court found that the need for individualized inquiries made Rules 23(b)(2) and 23(b)(3) inapplicable due to the prayers for money damages and the lack of sufficiently predominant class issues. The court therefore struck the class allegations.
The Semenko case underscores the problems with plaintiffs trying to seek certification of ADA classes. While some courts have certified such cases, they are particularly hard in the absence of a uniform policy or a tight definition of the types of disabilities to which it applies.
The bottom line: Plaintiffs seeking to assert class-wide disability claims face an uphill battle.