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4th Cir. Permits Class Certification for Workers at Nucor Plant

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By Mark Wilson, Esq. on May 12, 2015 1:09 PM

The ghost of Wal-Mart v. Dukes rides again in this class action case from the Fourth Circuit. The plaintiffs are black South Carolina steel workers alleging racial discrimination.

At this point in the litigation, the Fourth Circuit wasn't even dealing with the merits of the case. As with Wal-Mart, the operative question is whether the steel workers have formed a coherent class. Unlike the ultimate disposition of Wal-Mart, however, the Fourth Circuit held that the workers at Nucor Steel had formed a class.

Hostile Work Environment

The claim rests on two allegations: First, that Nucor engaged in "a pattern or practice of racially disparate treatment in promotions decisions." Second, that Nucor's promotions policies, though facially neutral, had a racially disparate impact.

Even though some of the personnel data had been destroyed, experts were able to demonstrate statistically, and using models, that fewer black workers were promoted than should have been. Anecdotes helped, too, including this little gem from a white supervisor, who claimed that his department manager told him, "I don't think we'll ever have a black supervisor while I'm here."

And did we mention the hostile work environment? It was hostile with a capital "H," consisting not only of racial remarks -- up to and including the N-word -- but also featured managers and supervisors ignoring such rabblerousing as "the prominent display of a hangman's noose, the commonplace showing of the Confederate flag, and an episode when a white employee draped a white sheet over his head with eyes cut out in the form of a KKK hood."

Everyday Low Thresholds

This case has been up and down between district court and the Fourth Circuit a couple of times. One of those times was after Wal-Mart, in which the Supreme Court said statistics and anecdotes weren't enough to certify a class of women who they claim were the victims of systematic gender discrimination by Walmart. On this basis, the district court dismissed the class certification for the lack of promotions, but affirmed the class certification for the hostile work environment (obviously, we hope).

While the Fourth Circuit found that the Wal-Mart standard applied, it nevertheless said this case was different. For one thing, the statistical evidence in Wal-Mart failed "to show discrimination on a store-by-store basis." Here, those concerns don't exist: The plaintiffs are 100 workers at a single steel mill, not thousands of workers at hundreds of mills.

Second, in Wal-Mart, experts could only hint at the existence of a pervasive culture of gender bias. By contrast, of course, the plaintiffs in this case provided "substantial evidence of unadulterated, consciously articulated, odious racism."

Third, the quantity of anecdotes of racism from workers represented a significant proportion of the workers in the class. In Wal-Mart, there was only one affidavit for every 12,500 class members.

Fears that Wal-Mart destroyed the use of the class action mechanism have apparently been premature, as this case demonstrates. Even statistical and anecdotal evidence will still permit class certification -- but on a smaller scale than a nationwide chain of thousands of stores.

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