November 21, 2008 (Shannon P. Duffy LAW.COM) — Former U.S. Supreme Court Justice Sandra Day O’Connor’s first case as a visiting judge on the 3rd U.S. Circuit Court of Appeals presented a cutting-edge question in employment discrimination law: whether workers may pursue a class action to challenge companywide policies allegedly designed to thwart the Americans with Disabilities Act.

In the appeal in Hohider v. United Parcel Service Inc., lawyers for UPS are urging the 3rd Circuit to reverse a decision by U.S. District Judge Joy Flowers Conti of the Western District of Pennsylvania that certified a national class action brought by current and former UPS workers who claim the company’s policies are hostile to those seeking a “reasonable accommodation.”

The central claim in the case is that UPS has an unwritten policy of requiring that injured or ill employees must be “100 percent cured” before they can return to work.

UPS’s lead lawyer, Mark A. Perry of Gibson Dunn & Crutcher in Washington, D.C. — who clerked for O’Connor on the Supreme Court during the 1993-94 term — told the panel that “the wildly divergent claims of tens of thousands of persons seeking highly individuated relief, including billions of dollars in money, cannot be certified as a class action.”

But Perry was almost immediately interrupted by Circuit Judge Marjorie O. Rendell, who asked, “Isn’t this a classic [Rule] 23(b)(2) where the class is complaining of three practices?”

Rendell said the plaintiffs appeared to be seeking declaratory and injunctive relief and made “very little mention of monetary relief.”

Perry disagreed, saying the lead plaintiffs alone were each seeking $3.75 million in compensatory and punitive damages and backpay, and that the total relief sought for the class would therefore be in the billions.

The problem with the case, Perry said, is that it would require thousands of individual determinations about whether each class member is truly disabled, truly qualified for the job and truly entitled to an accommodation.

Rendell asked why it would be improper for Conti to certify the case for injunctive relief, leaving the issue of backpay for later.

Perry said a class might work if the plaintiffs all suffered from the same impairment and held the same post, but that Conti certified a class with thousands of different impairments from workers who held scores of different jobs.

“There is no common thread that ties this case together,” Perry said.

Chief Judge Anthony J. Scirica asked if Perry were arguing that such a case is “simply not eligible” for class certification and whether his answer would be different if UPS’ alleged policies were formal, written policies.

“We’re not saying there is no such thing as an ADA class action,” Perry said.

But the ADA allows class actions only in limited cases where the issue is one that lends itself to class treatment in which an employer imposes job requirements that have the effect of excluding a class of workers with a defined disability.

The UPS workers, Perry said, brought a much larger case.

“At every stage of this lawsuit, the questions presented and the questions that must be answered by the trier of fact are highly and specifically tailored to the individual employee,” Perry said.

Rendell challenged Perry on that point, saying, “You’re always going to have individual components. … The question is whether a class could be certified at all, for certain purposes, and here it would seem that the three practices that they’re alleging would be common and would be something that is not individualized, but could be proven for the benefit of the class as a whole.”

Pressing her point, Rendell asked: “How else is this kind of case going to be pursued … isn’t this exactly what the class action is meant for — showing these kinds of patterns and practices?”

Perry insisted that the ADA differs from Title VII, where class members would have little difficulty proving that they are members of a class of “all women” or “all Hispanics.” Disabled workers, he said, must first prove that they are disabled to be included in the class.

O’Connor asked if recent amendments to the ADA had “substantially changed what constitutes a disability” and why the new provisions had not been addressed in the lawyers’ briefs.

Perry said the new law was enacted after the briefs were filed but that the new provisions would actually help UPS’ case because Congress explicitly said that workers who are merely “regarded as” disabled are not entitled to any accommodations.

“This is a ‘regarded as’ case,” Perry said. “What injunction could these people possibly get after Jan. 1?”

Arguing for the plaintiffs, attorney Judith S. Scolnick of Scott & Scott in New York said the case was “about UPS’ systemic, companywide practices that injure employees throughout the country and deprive them of the ability to return to work after illness or injury in violation of the ADA.”

UPS, Scolnick said, “regularly, routinely, as a standard operating procedure, evades the proscriptions of the ADA.”

But Scolnick, too, was soon facing tough questions from Rendell and Scirica.

Scirica wondered whether it was proper for the courts to import the caselaw that governs Title VII class actions into the ADA context.

Scolnick insisted that Congress expected the courts to do exactly that and allow plaintiffs to challenge “patterns and practices” by employers that violate the ADA.

But Rendell wondered how the case would proceed and asked if each class member would first have to prove that he or she was “qualified” for the job.

Scolnick said that once the plaintiffs had proven in the first phase of the case that the illegal policies existed, the class members would each enter the second phase “armed with the presumption” that they were the victims of the policies.

The relief the plaintiffs are seeking, she said, “is not an accommodation — it’s the opportunity to make your case for an accommodation.”

But Rendell pressed her point, saying “the class doesn’t even include in its definition that the people have to be qualified individuals with a disability. The class includes people who have been out of work or filed for workers’ comp — which means people who do not qualify for any relief under the ADA are included in this class. How can that be?”

Scolnick insisted that Conti had carefully re-written the definition of the class to make if very fact specific so that it now includes only those workers who were unable to return to their jobs because of the allegedly illegal policies.

“If this case is not affirmed, it would mean as a practical matter that you can’t have any ADA practice or policy class action in direct contravention to what Congress said,” Scolnick said.