Bridging the Falcon Gap: Do Claims of Subjective Decisionmaking in Employment Discrimination Class Actions Satisfy the Rule 23(a) Commonality and Typicality Requirements?

I. INTRODUCTION "Judge Certifies Class of 1.5 Million Female Employees of Wal-Mart."1 "Costco Hit with Nationwide Gender Discrimination Class."2 "Home Depot Agrees to Pay $65 Million to Settle Sex Discrimination Class Action."3 These recent headlines indicate the increase in large-scale employment discrimination class actions4 and the millions of dollars at stake for plaintiffs and employers.5 A common allegation6 in employment discrimination class actions is that the employer had a policy of allowing managers "excessive subjectivity"7 or "unfettered discretion"8 in making a variety of employment decisions, such as the hiring, the promoting, and discharging of employees.9 Excessive subjectivity is a nebulous term. It often refers to a variety of practices, but primarily includes allowing managers to base their decisions on their subjective evaluations of employees, rather than on any objective set of criteria.10 Plaintiffs in these class actions allege that the employer's policy of subjective decisionmaking facilitated or caused discrimination against the class by allowing managers to abuse their authority in order to discriminate.11 The federal courts are split in how they apply Federal Rules of Civil Procedure 23(a) ("Rule 23(a)") and 23(b) ("Rule 23(b)") to plaintiffs bringing a class action Title VII claim based on an employer's use of subjective decisionmaking.12 Within the broad disagreement over the applicability of Rule 23(a) and Rule 23(b), this essay focuses on the split over whether the existence of a policy of subjective decisionmaking can satisfy the commonality and typicality requirements of Rule 23(a).13 This split occurs on two interrelated levels. On one level, courts differ over whether an employer's policy of subjective decisionmaking, in and of itself, can provide the basis for a class that fulfills the Rule 23(a) requirements, and, on the other level, courts clash over the statistical evidence necessary to support class certification. Regarding the debate over the policy of subjective decisionmaking, some courts contend that the existence of a policy of subjective decisionmaking supports a finding of commonality and typicality, and that the policy can be challenged under either the disparate impact or disparate treatment causes of action.14 Other courts reason that subjective decisionmaking is not a policy subject to challenge under Title VII,15 and that even if it were, the inherently individual application of this policy ensures that class members do not have common issues or experiences.16 Statistical evidence comes into play as a result of a commonly occurring set of facts in large-scale employment discrimination class actions. In these cases, the defendant, often a large corporation, frequently has a decentralized decisionmaking structure. As a result, multiple supervisors at different levels of the management hierarchy have made the employment decisions that affected the class members.17 In addition, the putative class is often highly diverse, containing employees working in multiple facilities and in multiple occupations.1 Many courts conclude that decentralized decisionmaking and class diversity prevent a finding of commonality and typicality.19 Plaintiffs often attempt to resolve the problems inherent in finding commonality in such diverse classes by presenting statistics showing that the policy of subjective decisionmaking has had an adverse impact across the class.20 Courts differ on the proper scrutiny to be applied to these statistics. Some accept the plaintiffs statistical evidence at face value, even when these statistics are aggregated to show disparities between class members and other employees on a broad, sometimes national, level.21 Other courts examine the plaintiffs statistics more closely and hold that broadly aggregated statistics do not support fulfilling the requirements of Rule 23(a).22 The multiple splits on this issue are generally resolved either for or against the plaintiff across the board, leaving courts clustered at two opposing poles. …