Eighth Circuit Reverses ADA Class Certification in "Fitness for Duty" Challenge

ABSTRACT: The Eighth Circuit reversed class certification of a claim under the Americans with Disabilities Act that challenged a railroad's "fitness-for-duty" policy, holding the district court abused its discretion in finding that plaintiffs met the cohesiveness, predominance and superiority requirements.

The U.S. Court of Appeals for the Eighth Circuit reversed a ruling of the United States District Court of Nebraska, which granted class certification to a group of Union Pacific employees, past and present, who alleged that the railroad’s “fitness-for-duty” policy violates the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. The appellate court granted interlocutory review of the class certification pursuant to Federal Rule of Civil Procedure 23(f), and concluded that plaintiffs failed to meet the cohesiveness, predominance and superiority requirements under Rules 23(b)(2) and (b)(3). This is a potentially important ruling for companies who consider “fitness-for-duty” evaluations important for managing their operations and maintaining a safe workplace.

Six named plaintiffs moved to certify a class of over 7,000 current and former employees of Union Pacific, under the ADA. The district court granted the hybrid class certification which defined to include all employees who have been or will be subject to a “fitness-for-duty” evaluation because of a reportable health event used by Union Pacific. Examples of a reportable health event are heart attack, stroke, seizure and eye injury, just to name a few. The “fitness-for-duty” applies to all 650 position within the company. “Fitness-for-duty” evaluation is used to determine if the reportable health event in which the employee reports effects their ability to safely do their job or if they need accommodations because of the reportable health event in order to safely do their job.

By granting this hybrid class certification under subparts (b)(2) and (b)(3) of Rule 23, the Court allowed the plaintiffs to proceed as a class and then try the case in two phases, consistent with the framework set out in International BHD of Teamsters v United States, 431 U.S. 324 (1977). In the first phase, the jury would determine whether Union Pacific engaged in a pattern or practice of disability discrimination on a class-wide basis. In the second stage, individual hearings would take place to determine damages as to each individual class member. Union Pacific appealed the class certification on the basis the plaintiffs did not satisfy cohesiveness, predominance and superiority requirements required under Rule 23(b)(2) and 23(b)(3). 

The Eighth Circuit opinion first focused on whether the class was cohesive, noting that the six named plaintiffs each had different conditions. These conditions, which would be reportable health events, included: a heart condition that required a pacemaker; epilepsy; lightheadedness; cardiomyopathy; post-traumatic stress disorder; and a seizure disorder. The court observed that not only are the conditions different, but that each condition then had to be assessed with respect to the 650 positions within in the company. An accountant with seizure disorder is different from a train engineer with a seizure disorder. To answer the predominant question of whether a policy is unlawfully discriminatory requires asking subsidiary questions of whether the policy is consistent with business necessity. The analysis of business necessity is highly individualized, requiring separate analysis for each different medical condition. And for each such condition, it must be determined how it impacts the affected employee’s ability to perform different jobs throughout the company.   

In the Court’s view, the individualized inquiries needed to determine if the fitness-to-work policy is unlawfully discriminatory under ADA is not consistent with Rule 23. Because these individualized questions defeated both predominance and cohesiveness, the lower court abused its discretion by certifying the class under Rule 23(b)(2) & (b)(3). 

The Eighth Circuit acknowledged, however, that if the plaintiffs’ claim had focused more narrowly on employees with the same or similar medical conditions, involving the same or similar job categories, a hybrid class could potentially be certified under Rule 23. 

Companies should, of course, always take care that policies which may limit employees’ access to certain jobs, based on health and safety concerns, are appropriately tailored to business necessity, and consistent with the ADA and its “reasonable accommodation” requirements. But the Harris opinion should prove extremely useful to corporate defendants seeking to stave off overly broad class certification demands, in cases challenging company “fitness-to-work” or other health or safety policies.