*1 GENERAL TELEPHONE OF THE COMPANY SOUTH
WEST v. FALCON Argued April No. 81-574. 1982 Decided June *2 Stevens, Brennan, J., Court, opinion delivered the in which White, Marshall, O’Connor, Blackmun, Rehnquist, Powell, JJ., Burger, joined. J., part dis- opinion concurring C. filed an senting part, p. post,
Thompson Powers With for argued the cause petitioner. B. E. Russell the briefs were Mark Goodwin him on Nunnally.
Frank P. Hernandez the cause argued respondent. E. John Collins.* him With on the brief opinion delivered Court. Justice Stevens Falcon, is whether The question presented did not him because he is promote complained petitioner maintain a Mexican-American, was properly permitted em- of Mexican-American class action on behalf hire. did not whom ployment petitioner t—< initiated a recruitment and train- special *3 re- Through for minorities. program program, hired in 1969 as a and groundman, was July Falcon spondent first was twice to lineman and year within a he promoted, refused a pro- then to He lineman-in-charge. subsequently In he motion to October 1972 installer-repairman. applied his was denied even application for the of field job inspector; several white granted though promotion less with seniority.
Falcon filed a Employ- thereupon charge Equal he had his belief that stating Opportunity ment Commission his origin because of national been over for passed Mexi- operated against and that petitioner’s promotion policy Telephone Co. v. General can-Americans as a class. Falcon Southwest, (CA5 1980). In due F. 2d n. 2 369, 372, of Williams, Robert E. amici curiae urging of
*Briefs reversal were filed McDowell, Employment Douglas S. Daniel R. Levinson for the Equal and Walker, Don Wayne Richard K. Bishop, S. Advisory Council; and and ald W. Anderson Republicbank Dallas. Goldstein, Vilma S. III, Barry L. Greenberg, M. Jack James Nabrit Martinez, Legal Defense and Morris J. Bailer filed a brief for the NAACP amici curiae Fund, Inc., urging affirmance. al., et and Educational as Reynolds, Jessica Lee, Attorney Assistant Solicitor General Gross, Levy for the Silver, a brief Dunsay Mark L. and Harold filed curiae. States as amicus United from letter the Commission right-to-sue he received a
course this action Title VII 1975, he commenced under and, in April amended, Act of Stat. Rights Civil (1976 IV), ed. and Supp. et seq. §2000e 42 U. C. S. for the Northern District of District Court States United maintained “a alleged His complaint Texas. (a) or of: custom, usage discriminating practice, policy, because national and origin against [Mexican-Americans] terms, conditions, privi- and compensation, with respect (b) ... subjecting and [Mexican- leges employment, discrimination.”1 Re- to continuous Americans] as a result this whites with policy claimed that spondent and lower and evaluation scores experience less qualification been more com- rapidly. had promoted than no allegations concerning petitioner’s factual contained plaint hiring practices. the action “on his own behalf and on brought
Respondent situated, to Rule similarly of other persons pursuant behalf 23(b)(2) The class of the Federal Rules Civil Procedure.”2
1App. complaint, respondent alleged: paragraph VI of transfer, employment, promotional, “The Defendant has established an seniority intent, is to con- system, design, purpose and of which continuing preserving, preserve, which has the tinue and effect *4 usage limiting employ- of the policy, practice, the custom and Defendant’s ment, transfer, promotional em- opportunities and of Mexican-American Id., origin.” the at 15. ployees company because of national 2 Id., provides, part: at 13. Rule in “(a) Prerequisites of class to a Class Action. One or more members (1) may only all if the representative parties sue or be sued as behalf of (2) there joinder impracticable, class is is so numerous that of all members (3) class, or defenses are of law or fact common to the the claims of the representative parties typical of the claims or defenses are of the (4) class, protect representative fairly adequately parties and the will and the interests of the class. “(b) may maintained as a Class Actions An be Maintainable. action (a) satisfied, in if prerequisites class action the are subdivision addition:
“(2) grounds party opposing the to act on the class has acted or refused of Mexican-Ameri- was “composed in complaint identified the be employed, who might or employed, are who can persons its place COMPANY TELEPHONE by GENERAL have been and who Texas, who in Irving, located business affected the adversely by or might to be continue of herein.”3 complained written interrogatories,4 responding
After
in favor of certification
filed a memorandum
respondent
American employees
Mexican
hourly
“the class of all
or
the future be
employed,
are
have been employed,
who have applied
Mexican Americans
those
and all
employed
Defendant not
had the
would have applied
or
in its employment practices.”
racial discrimination
practiced
of the
the
by
ruling
supported
46-47. His position
App.
injunc-
class, thereby making appropriate final
generally applicable to the
respect to the class as a
declaratory relief with
corresponding
relief or
tive
.
. .”
whole .
which
al
complaint
paragraph of
App. 13-14. The
continued:
requirements of Rule 23
leged
conformance
affecting
rights
and fact
questions of law
“There are common
limited, classified,
be,
are, and who continue to
members of this class who
deprive
ways
deprive and/or tend
against which
and discriminated
adversely af-
opportunities and which otherwise
equal employment
them of
origin.
persons
These
status as
because of national
fect their
A common
impracticable.
joinder
are so
of all members
numerous that
represented
adequately
class are
sought.
relief is
The interests of said
ap-
grounds generally
to act on
has acted or refused
Plaintiff. Defendant
plicable
at 14.
to the Plaintiff.”
stated:
Interrogatory
Petitioner’s
No. 8
rights
which affect
fac[t]
“Identify
questions of law and
the common
Id., at 26.
purported
of the
class.”
members of the
interrogatory as follows:
Respondent answered that
the facts
class are
rights
the members
“The facts which affect the
made,
subjec-
are
employment,
ways
of their
in which evaluations
for raises
objective
tive rather
manner in which recommendations
than
surrounding the
facts
handled,
all of the
promotions
transfers and
are
Telephone Com-
persons
*5
employment of Mexiean-Ameriean
a con-
for
No. 8 call
Interrogatory
pany.
specified in
The
of law
Id., at 34.
part
clusion on the
of the Plaintiff.”
in
for the Fifth Circuit
John-
Court
United States
(1969),
Express, Inc.,
Georgia Highway
Following issues, the District Court trial of findings law separate and conclusions of with fact entered respect The respondent then to the class. District and first to against petitioner re had not discriminated Court found spondent against hiring, him in did but that it discriminate in App. practices. for Cert. 37a. 35a, to Pet. its find class, concluding about converse conclusions reached The court promotion practices, but no discrimination against petitioner Mexican-Americans had discriminated hiring practices. Irving facility at 39a-40a.5 its at its proceedings, post-trial or- the District Court After various petitioner all Mexi- list of to furnish with a dered Irving applied employment had at can-Americans who 2, 1976, pretrial February provided, order of The District Court’s part: proceed represent
“The case a class action and the Plaintiff is up employees class is to who are em- the class. The be made of those Irving Divi- ployed applied in the have company, sion of the no division. Defendant other “Plaintiff if negotiations and Defendant are to to see there is hold further possibility Plaintiff, of granting relief MARIANO S. individual to the App. to FALCON.” Pet. for Cert. 48a-49a. subsequent decertify District Court both denied motions to the class
before and after the trial. The District Court ordered to accelerate its affirmative- plan by taking actively promote action specified steps to more recruit id,., Irving facility. Mexican-Americans at its See 41a-45a.
153 facility during period between 1,1973, and Octo- January 18,1976. ber was Respondent then ordered to notice to give those them persons advising they be entitled to might some form of recovery. Evidence was taken concerning to the responded notice, and backpay to ultimately awarded 13 persons, addition to respondent Falcon. The total recovery by respondent and entire $67,925.49, class amounted to costs plus and interest.7 Both parties appealed. Court of Appeals rejected contention that respondent’s the class should have encom- all of in Texas, passed petitioner’s operations Mexico, New Oklahoma, hand, and Arkansas.8 On the other the court also rejected the class had petitioner’s argument been de- fined For, too under the Fifth broadly. Circuit’s across-the- board rule, it for “an permissible employee complaining one another employment practice represent complaining another if the and the practice, plaintiff members of the class suffer from the same essentially case, this all of injury. the claims are based on discrimination because of national Payne F. origin.” 2d, 626 at 375.9 The court relied on 7 Respondent’s recovery $1,040.33. individual large amounted to A award, $28,827.50, share of represented attorney’s the class fees. Most of the remainder resulted from petitioner’s practice keeping applications all only days; active for 90 applica the District found Court that most considered, properly rejected tions had been they at the time were but that justify employment disap could not the refusal to extend pointed applicants days. Supp. after an 463 F. 315 interval of See (1978). 8The Court of held had not abused its that the District Court discretion since each of conducted its own divisions management since Fal class would be much more difficult. broader (CA5 1980). Southwest, con Telephone v. General Co. 626 F. 2d 9 The court continued: sex, dispositive “While origin similarities of claims are not race or national met, finding favor of been are prerequisites that the of Rule 23 have they extremely determination, outweigh important can factor in the complaining fact that the about some- plaintiff members of the here, specific discriminatory practices. what different In addition Laboratories, Inc., (1978), F. 2d 895 cert. de Travenol in which the Fifth Circuit stated: nied, 439 U. S. is an ‘across the board’ attack on “Plaintiffs’ action to have alleged been unequal to- of racial policy Travenol pursuant committed *7 who have As been allegedly parties discrimination. those discriminatory practices, some of by aggrieved a sufficient nexus to enable demonstrated have plaintiffs class members from suffering other them to represent the motivated same policies.” different practices F. 2d, in 626 at 375. 900, 2d, quoted 565 F. of merits, upheld respondent’s Court Appeals
theOn the in but held that the promotion,10 treatment of disparate claim in impact hiring findings relating disparate Court’s District on of the class.11 recovery behalf support insufficient to were type on of simply the same plaintiff than alliance based showed more similarity of interests based discriminatory He also showed a claim. (cita- Id., at 375-376 location, job job and other considerations.” function omitted). tions location, function, unidenti- job and the explain job how The did not court 23(a) determination. to the Rule other were relevant fied considerations pro proffered reasons found 10 TheDistrict Court subjec whites, were insufficient and moting respondent, than the rather prima made out Appeals had The held tive. Court Green, Douglas Corp. v. in McDonnell facie case under the test set forth 792, conclusion 802, and that the District Court’s 411 U. S. so clearly erroneous. was not prima had not rebutted that facie case opinion in Burdine v. Appeals on its earlier holding, Court of relied the (1979). opinion in Affairs, Our Dept. Community Texas F. 2d 563 608 Burdine yet been announced. had raised contentions of other Appeals disposed The of a number Court be- proceedings the further parties, pending both and reserved others peti- latter issues Among the fore the Court on remand. District class theory computing the objection District tioner’s to the Court’s supra. 7,n. backpay awards. See compar evidence on statistical finding District was based Court’s employ, and the company’s in the number Mexican-Americans of Mexican-Americans percentage number hired 1972and Community Texas Dept. decided After this Court Affairs vacated the Burdine, 450 U. S. judgment we further consideration and directed of Court Co. Southwest Telephone of that opinion. light Falcon, The Fifth Circuit thereupon S. 1036. U. addressing respondent’s of its opinion the portion vacated of its portions reinstated opinion but claim class certification. 647 F. 2d District Court’s approving (1981). of both respondent’s promotion With the merits claims for re remaining open the class claim and remand, District Court on we granted consideration whether action was properly certiorari to decide denied behalf of both were pro maintained on who were denied employment. motion and applicants
M *8 as “an to designed exception The class-action device on rule that is conducted behalf of litigation by usual ano v. Yamasaki, only.” the individual named parties Calif 442 682, S. 700-701. Class relief is “peculiarly appropri U. as a ate” when the “issues involved are common to the class of law they whole” and when “turn applicable Id., at 701. the same manner to each member the class.” For in saves the re cases, such “the class-action device sources of both the courts and the parties by permitting liti issue to be potentially affecting every [class member] Ibid. in an economical fashion under Rule 23.” gated amended, as au- 1964, Title VII of the Act of Rights Civil to thorizes the Commission Employment Opportunity Equal sue in aggrieved its own name to secure relief for individuals 39a. App. Pet. for Cert. the Dallas-Fort Worth labor force. See to recovery years through 1976 based on Since had been allowed for the 1973 period, and since pertaining only portion statistical a of that evidence there was concerning period suggested that evidence the entire proceedings on disparate impact, Appeals no ordered further the Court of 2d, claims. 626 F. at 380-382. 156 by discriminatory
by forbidden the Act. See §2000e-5(f)(l). exercising this enforcement U. S. C. groups employ- power, seek relief the Commission complying without or ees Telephone Northwest 23. Co. of Rule strictures VII, however, 318. Title contains U. S. EEOC, 446 by pri- special for class suits maintained no authorization litigant seeking to maintain parties. individual a An vate prerequisites must “the Title VII meet under class action commonality, typicality, adequacy repre- numerosity, 23(a). specified in at 330. These Rule re- sentation” effectively fairly quirements to those “limit the class claims plaintiff’s encompassed Ibid. the named claims.” representative repeatedly held that “a class must We have ‘possess part the same interest suffer the class and injury’ the class members.” East Texas Motor the same Rodriguez, System, (quot- Freight Inc. U. S. ing Schlesinger Stop War, v. Reservists Committee 216). Freight, In East a Title U. S. Texas Motor VII city brought drivers, action three Mexican-American consisting trucking Fifth Circuit certified class com- city allegedly pany’s black and Mexican-American drivers grounds denied on racial or ethnic transfers to more desirable jobs. line-driver had We held that Court of “plainly declaring S., erred a class action.” 431 U. Because at the time the it was class was certified clear posi- plaintiffs qualified the named for line-driver were “they injury result of the tions, could have suffered no as a *9 allegedly discriminatory they practices, were, therefore, and simply eligible represent persons who did a class allegedly injury.” Id., suffer 403-404. at holding Freight limited; we
Our in East Texas Motor presented if District the noted “a different case would be appeared only had Court had a later it certified class and plaintiffs or were other- the named members were not class inappropriate representatives.” n. 12. wise class We behind Fifth theory also Circuit’s recognized rule, our awareness “that suits noting alleg- across-the-board ethnic discrimination are often their racial or very classwide and suits, involving wrongs,” nature class “[cjommon of law or fact are typically questions present.” breath, however, the same we reiterated that Id., at “careful to the of Fed. Rule requirements attention Civ. Proc. 23 remains nonetheless and that indispensable” fact that a racial or ethnic dis- complaint alleges “mere not in itself ensure that the crimination does has party be an the lawsuit will brought adequate representative the real victims of those who have been that discrimina- may Id., at 405-406. tion.” disagree proposition
We cannot underlying rule —that racial discrimination is across-the-board defi- discrimination.12 But the nition class that such allegation has neither discrimination occurred determines whether a be class action maintained accordance with Rule 23 may nor defines the class that be certified. Conceptually, (a) there a wide between an individual’s claim that he gap has and been denied a discriminatory grounds, his otherwise has that the unsupported allegation company (b) discrimination, and the existence of a class of policy individual, who have suffered the same as that persons injury such that the individual’s claim and the class claims will share common the individual’s of law or fact and that claim will of the class claims.13 For typical (MD Bag Corp., 12 See Hall v. Werthan Supp. F. Tenn. 1966). 23(a) commonality Rule tend to typicality requirements 13 The par merge. determining Both whether under the guideposts serve as ticular is economical and circumstances maintenance of a class action are so interrelated plaintiffs whether the named claims claim and fairly adequately pro that the interests of the will be class members merge also tend to requirements tected their absence. Those therefore although the latter re with the adequacy-of-representation requirement, of class counsel quirement competency also raises concerns about *10 158 more than the validity much prove he must that gap,
bridge he passed evidence that was though Even claim. his own of less were deserving several when whites promotion over for that was respondent the conclusion support advanced origin, of national such evi- because his the promotion denied the additional inferences justify necessarily not dence would of treatment (1) discriminatory typical petitioner’s this that (2) promotion that petitioner’s practices, promotion ethnic discrimination that a of per- policy motivated are (3) division, or this of Irving policy vades petitioner’s other petitioner’s is reflected em- discrimination ethnic way the same it is hiring, such practices, ployment These practices. in the additional promotion manifested the tenuous character any presump- demonstrate inferences within “fairly encompassed” the class claims are tion that claim. respondent’s an insufficient basis for complaint provided
Respondent’s of his claim of that the discrimination concluding adjudication common any would the decision require ques failure hire Mexi tion more concerning can-Americans. Without any specific identify presentation of law or fact common to the that were claims of the members of the class he respondent sought to it was error for the District Court represent,14 presume claim of other claims respondent’s typical case, conflicts of interest. In this ar- we need not address gument there is conflict of interest between rejected class of applicants pool enlargement because an of Mexican- employees American respondent’s promotion. will decrease chances for (“In EEOC, See General Telephone 318, Co. Northwest 446 U. S. employment litigation, arise, example, discrimination might conflicts employees between and who were denied will, if relief, granted compete fringe or with benefits senior- ity. Under Rule plaintiff classes”); the same these represent could East Texas see Freight Motor also System, Rodriguez, Inc. U. S. 395, 404-405. supra. See n. *11 employees against ap petitioner Mexican-American and specific discriminatory plicants. allegation of treat If one support attack, an across-the-board ment to were sufficient potential companywide every would be a class Title VII case nothing in find the statute to indicate that Con action. We expansion gress authorize such a wholesale intended to litigation.15 class-action predictable class action followed a course.
The trial of this respond- raising fact, of law or Instead of common evidentiary approaches to the individual and class ent’s attempted entirely different. He to his claims were sustain by proving intentional He individual claim discrimination. prove through the class claims evidence of tried to statistical Ironically, disparate impact. rejected the District Court promotion conceptually discrimination, class claim of which might typicality commonality have borne a closer rela- and tionship respondent’s claim, with individual but sustained the hiring class claim of discrimination. As the District Court’s findings liability demonstrate, the individual bifurcated might separately. and class claims as It well have been tried respondent’s is as class clear the maintenance of action a efficiency economy litiga- action did not advance “the and principal purpose procedure.” tion which is a Ameri- Pipe can Utah, & Construction Co. U. S.
15 petitioner If testing procedure appli used a biased evaluate both employees, cants for on behalf of and incumbent a class action every applicant employee might or the test prejudiced have been clearly satisfy commonality would of Rule typicality requirements and 23(a). Significant proof general policy employer operated that an under a conceivably justify discrimination could a of both class if the discrimination manifested itself in fashion, entirely subjective general through in the same such Title VII decisionmaking processes. regard noteworthy this it is discriminatory employment practices, not an abstract prohibits policy plaintiff is a aggrieved private discrimination. The mere fact that an national ori member of an race or persons identifiable class of of the same gin pos is all standing litigate insufficient to establish his on their behalf sible against employer. claims of discrimination a common class certi- not, course, judge propriety We do case, in this District Court’s error by hindsight. fication rule, across-the-board in the inherent the error of the named the legitimacy carefully to evaluate failure under representative a proper he is plea plaintiff’s Livesay, Coopers Lybrand & 23(a). noted we Rule As involves generally determination “the class U. S. in the factual and is- legal ‘enmeshed that are considerations Id., at 469 cause of action.’” the plaintiff’s sues comprising *12 Langdeau, Nat. Bank Mercantile U. S. (quoting 558). from the plain enough plead- issues are the Sometimes the interests the absent parties whether to determine ings claim, named plaintiff’s within the fairly encompassed are for the court to behind probe it bemay necessary sometimes rest the coming to certification ques- before pleadings the is the entered, judge Even a certification order tion. after light free it the modify subsequent develop- remains order, such dur- particularly ments in the For an litigation.16 members of the any the before notice is sent to period at n. 11. class, inherently S., “is tentative.” 437 U. the This enhances the usefulness class-action flexibility 23(a) device; actual, presumed, conformance with Rule remains, however, indispensable.
HH b-Hb-H 23(a) The need to the of Rule carefully apply requirements to Title VII by class actions was noticed a member of the Fifth Circuit rule. panel announced the across-the-board Georgia High- Johnson In a specially concurring opinion way Express, Inc., F. 2d, 1125-1127, at Godbold Judge id., emphasized the need for “more at precise pleadings,” 16 “As practicable soon as brought after the commencement of action action, aas the shall court determine order whether it is to so be conditional, An may may maintained. order under this subdivision be altered or amended before the decision on the merits.” Fed. Rule Civ. 23(c)(1). Proc. specificity
1125,for “without reasonable the court cannot de- representation class, fine the cannot determine whether the adequate, employer and the does not know how to defend,” significant” potential id., 1126. He as “most at termed judgment to the class members bound if unfairness framing pointed Ibid. And he of the class is overbroad. out assumption” underlying the the error of the “tacit across-the- surely plaintiff board rule that “all will be well for will win and manna will fall on all members of the class.” today in mind, 1127. With the same concerns we reiterate any action, like class action, that a Title VII class other only rig- if trial court is after satisfied, be certified 23(a) analysis, prerequisites of Rule have been orous satisfied. judgment Appeals affirming the certi- of the Court case is for fur- reversed,
fication order is and the remanded opinion. proceedings with this consistent ther
isIt so ordered. *13 dissenting concurring part in Burger, Chief Justice part. in agree I as it states the decision insofar Court’s determining general principles apply whether a class which in in However, should be in case Rule 23. certified this under my proceedings necessary remand for further view it is not to entirely should class that no since it is clear on this record simply the reverse have I would been certified this case. the to dismiss Court of remand with instructions class claim. promote purpose is to Rule 23 notes,
As the Court ques litigation judicial economy by allowing for of common 442 Yamasaki, v. ano tions of law and fact at one time. Calif (1979). strict attention that We have stressed 682, U. S. employ indispensable in requirements to Rule 23 is Sys- Freight Texas Motor East ment discrimination cases. (1977). 395, 405-406 This S.U. tem, Rodriguez, Inc. ‘“fairly to those encom- are limited claims class that means ” Ante, at quot- claims.’ plaintiffs named passed EEOC, Northwest Co. U. S. Telephone (1980). 318, 330 not job he was promoted claims
Respondent To Mexiean-American. he is a because field inspector under the he advances claim, “dispar which his successful a court that those he must convince theory, treatment” ate were they not because were promoted who were promoted instead, that he was not but, he was, than qualified better of this reasons. The success discriminatory promoted the comparative qualifications on evaluation claim depends and on anal inspector to field for promotion of the deci of the reasons for the promotion ysis credibility Respond who made decisions. those sions provided jobs of unsuccessful applicants class claim on behalf ent’s contrast, advanced under the “adverse with petitioner, of statis depends analysis Its success theory. impact” concerning hiring patterns.* tics are no com- record in this case shows there clearly claim and mon of law or fact between respondent’s class is that claim; only commonality a class is a Mexican-American and he seeks to represent ante, n. We of Mexican-Americans. See at have al- repeatedly held that the bare fact that a plaintiff racial or ethnic leges justify discrimination is enough Ante, East Texas Motor Freight, 157; certification. supra, at 405-406. have the class should not Accordingly, been certified. allegation *There is no are the those who made the decisions *14 persons
same who promoted inspector. Thus determined to field there is no claim person challenged that the or persons same who made the Mexican-Americans, decisions by prejudice were motivated against prejudice that this de- manifested itself in both the decisions and the promote cisions not to respondent. judge’s certify
Moreover, while a decision to a class is not normally by hindsight, to be evaluated ante, 160, at since the judge cannot know what the will show, evidence there is no stage lengthy judicial pro- reason for us at this of these ceedings proceed light actually not to of the evidence presented. properly The Court concludes that the Court the District Court failed to consider the determining requirements of Rule 23. whether to reverse simply reverse, and remand or to we can and should look at support The record shows that there is evidence. no for Respondent’s the class claim. own statistics show that 7.7% by petitioner hired between 1972 and those 1976 were Mexican-American while the relevant labor force was 5.2% Telephone Company Falcon v. Mexican-American. (1980). F. Southwest, 369, 372, 2d n. 16 Peti- of tioner’s unchallenged evidence shows that it hired Mexican- greater percentage Americans numbers than their though jobs applied labor force even Mexican-Americans for petitioner percentage with in numbers smaller than their negates any the labor n. force. 4. This claim of representative. Falcon as a class many already gone cases, Like so Title VII this case has years, draining judicial resources as well as resources litigants. judicial economy, promoting Rather than promoted multiplication “across-the-board” class action has litigation. of claims and endless Since it is clear that the brought claim on behalf of unsuccessful jobs simply with reverse succeed, cannot I would and remand with class claim. instructions to dismiss the