Seyfarth synopsis: In Allen et al. v. AT&T Mobility Services, LLC, Case No. 1:18-CV-03730 (ND Ga. March 21, 2022), plaintiffs alleged that AT&T, their former employer, they and other pregnant sales associates with the manner in which it implemented its attendance policy and associated discipline system. Plaintiffs filed an action for damages and an injunction against these practices under Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended by the Pregnancy Discrimination Act (“PDA”), 42 USC 2000e et seq. The plaintiffs filed a motion for class certification, which the court denied on the grounds that individual investigations were necessary to determine whether AT&T’s policies had harmed and/or harmed potential plaintiffs such that a settlement of their class action claims was not possible would be practical. This case is a must for employers facing class action discrimination claims and is another addition to the nascent and evolving Pregnancy Discrimination Act.
In Allen, the named plaintiffs filed a putative class-action lawsuit alleging that AT&T discriminated against its non-executive pregnant employees by enacting an absenteeism policy (“SAG”) that affected those employees differently. ID. at 3. Under the SAG, unexcused absences would accrue points and discipline would ensue from the imposition of those points. After earning three to four points, retail employees are subject to incremental disciplinary action. The SAG and associated disciplinary policies were implemented without discretion to ensure consistent attendance and disciplinary practices at all AT&T retail locations nationwide. ID.
Not all absences earn points. The SAG policy defines 13 categories of “excused” absences, such as: B. Family and Medical Leave Act (“FMLA”) leave, military leave, approved short-term disability, and approved workplace adjustments. ID. at 5. Employees must request leave via an app at least one hour before their scheduled shift. The app prompts employees to select a reason for the absence from a variety of options, none of which involve pregnancy. ID. at 6.
Employees may request excused absences due to their pregnancy or pregnancy-related conditions under the FMLA and short-term disability or approved workplace adjustments. While the FMLA covers incapacity for work due to pregnancy and prenatal care, it also requires workers to have at least 1,250 hours of service. In addition, under AT&T’s short-term disability policy, employees must submit their claims, including medical evidence, to a third party for review, and the policy does not cover medical conditions that do not qualify as disability. The same restrictions apply to approved job adjustment leave, which is only available to persons with disabilities. ID. Thus, the essence of the plaintiffs’ allegations was that AT&T charged pregnant employees disproportionately to other employees in order to provide a basis for an excused absence. ID. at 7.
The Court’s Decision
The court denied the plaintiffs’ application for bulk certification. In addressing the four requirements of Rule 23(a) – number, commonality, typicality and reasonableness – the Court concluded that all were met. ID. at 12-19. The court found that the plaintiffs had established a common, contentious, reduced to writing and centrally administered policy – the SAG – and identified common issues central to the case, such as whether the SAG had different effects on pregnant workers as it is disproportionate imposes discipline. The court also found that the typicality requirement was met, since the plaintiffs’ claims arose out of the same conduct underlying the class action lawsuits – the SAG – according to which pregnant workers were treated differently.
The court dismissed AT&T’s arguments to the contrary, including that the plaintiffs were not typical because they “knew how to obtain excuses for pregnancy-related absences under the SAG, but merely ‘did not act on that knowledge’.” at 20. The court declared “[b]However, plaintiffs’ allegations are that they were unable to successfully enforce excused absences and disciplinary action” and “[t]These alleged experiences with the SAG policy were allegedly typical of the experiences of the pregnant workers they sought to represent.” ID. The court further found that the adequacy requirement was similarly met – the plaintiffs “presented evidence supporting their contention that their unexcused absences were due to pregnancy and that this was sufficient to meet their burden at the class certification stage.” ID. at 22
The Court further analyzed whether the case could be upheld under Rule 23(b)(3) or, alternatively, Rule 23(c)(4). The court ruled that the plaintiffs’ “much more sophisticated” supremacy investigation failed to show that issues of law or fact common to group members prevailed over any issues affecting only individual members. ID. at 23-24. The court found that individualized issues – including whether a member of the class was absent from work; whether the absence was caused by an inability to work; whether this inability was due to pregnancy; and whether the employee notified or attempted to notify AT&T of such inability; and whether the employee sought an excuse for the absence – in this case prevailed. Furthermore, to resolve the problem that the assessment of points, even without termination, is a detrimental employment measure, since points may limit the availability of transfers or promotions to a member of the class, “would imperatively require the court to assess facts and circumstances which unique to each person in the class are class.” ID card. with 25.
Regarding Rule 23(c)(4), which states that “[w]If appropriate, a class action relating to certain matters may be brought or maintained as a class action,” the court agreed with AT&T’s position. ID. at 28. Specifically, the Court held that certifying a class on the question of liability for any damages (compensatory or punitive) would not be appropriate given the individual questions that would prevail as to whether and to what extent AT&T would be liable specific suspected class member. Accordingly, the Court held that Rule 23(a)(4) should not apply in the circumstances of this particular case. ID. at 29
Implications for employers
The ruling in Allen is noteworthy for employers because it is the most recent PDA class action — a major issue of concern to all employers. In fact, the EEOC has made pregnancy discrimination a priority in recent years. When plaintiffs attempt to certify classes with alleged class members allegedly harmed by a common employment policy or practice, employers can refer to Allen to illustrate why class treatment is still not appropriate. Although the plaintiffs were able to meet all four requirements of rule 23(a), the lack of correlation between the experiences of all pregnant employees with respect to the SAG prevented them from qualifying for a class under the requirements of rule 23(b). certify.