Class not reasonably ascertainable

In the wake of major wage and hour decisions such as last week’s opinion in Epic Systems Corp. v. Lewis, it’s easy to forget that employers continue to face class-action claims in other contexts, particularly with respect to claimed discrimination based on race or gender, and that such claims may be very difficult both to mount and to defend.

In White Glove Staffing, Inc. v. Methodist Hospitals of Dallas, Civil Action No. 3:17-CV-1158K (May 29, 2018), the court considered an interesting fact pattern involving a staffing agency that supplied food service workers in a hospital environment. The crux of the claim was that the hospital allegedly insisted that the staffing agent only sent Hispanic employees, and rejected at least one African-American prep cook on the grounds that she was “not working out.” When faced with the claimed demand only for Hispanic workers, the staffing agency terminated the contract.

One novel aspect of the case was that the staffing agency itself, White Glove, was a party plaintiff, as were the African-American cook the hospital rejected and three African-American staffing company workers who contended that they would not have been accepted by the hospital due to their race.

The plaintiffs moved to certify a class of between 40 and 75 workers who allegedly would have obtained work at the hospital but for its “Hispanics only” policy. Despite the claimed unsavory facts, the problem with this class, as is often true in failure to hire cases, was discerning who was in it. The proposed class was “all employees of White Glove Staffing who would have been supplied to Defendants to be banquet servers, prep cooks, dishwashers, and set-up crews.” The court found, however, that that definition would have been impossible to apply given that it assumed (1) the staffing company and the hospital would have had a contract; (2) the hospital actually requested workers in the listed positions; (3) White Glove would have actually sent the workers in the proposed class; and (4) the class members would have been qualified, available and willing to work at the hospital. Finding that the class was not ascertainable, the court denied certification.

Part of the problem here was the attempt to pursue these claims as a class. If, as the plaintiffs claimed, the employer had insisted that all referrals be of Hispanic origin, they would have had stronger individual claims on the merits and could have sought injunctive relief should they prove what they had alleged. In any event, the claims in this instance were felled by a variation on the “fail-safe class” that tries to bind the merits of the case to the class definition.

The bottom line: Failure to hire cases are difficult to certify as a class and may be undone by a broad proposed definition that is unduly bound up with the merits.