4th Circuit Revives Class Claims for Steelworkers

     RICHMOND, Va. (CN) – The 4th Circuit upheld class certification for black steelworkers who claim they were subjected to extreme and unrelenting racial discrimination while working for the Nucor Corporation in South Carolina.
     The ruling handed down on May 11 is the second time the 4th Circuit has found the district court erred in refusing to certify the workers’ class, and U.S. Circuit Judge Roger Gregory said the problem is the court is misapplying the U.S. Supreme Court’s ruling in the 2011 case Wal-Mart Stores, Inc. v. Dukes.
     In Wal-Mart, a sharply divided high court reversed a lower court’s decision to certify a class off that included 1.6 million woman who alleged gender discrimination in pay and promotion policies at the retail giant’s stores.
     Simply put, a majority of the Justices ruled the plaintiffs did not have enough in common to constitute a class. Justice Antonin Scalia, writing for the majority, said lead plaintiff Betty Dukes and the women who hoped to join her lawsuit, could not show there was a “common answer to the crucial question, why was I disfavored?”
     Critics of the ruling said it would limit the ability of other plaintiffs to band together in large class actions. Judge Gregory didn’t quite far in his ruling in favor of the black steelworkers, but he did acknowledge that Wal-Mart had reshaped the “class action landscape.”
     Nevertheless, he said, in this case the there is more than enough in the steelworkers’ claims to warrant class certification.
     Gregory noted that “statistics indicate that promotions at Nucor depended in part on whether an individual was black or white … [that] substantial anecdotal evidence suggests discrimination in specific promotions decisions in multiple plant departments … and [that] there is also significant evidence that those promotions decisions were made in the context of a racially hostile work environment.”
     “Against that backdrop,” the judge wrote, “the district court fundamentally misapprehended the reach of Wal-Mart and its application to the workers’ promotions class”
     The 4th Circuit’s opinion did not directly address a separate hostile work environment claim filed by the workers. The district court refused to decertify that claim, and the 4th Circuit previously denied as untimely Nucor’s petition for interlocutory review.
     But that element of the workers’ dispute with their employer clearly weighed on Gregory, who called the claims “Disquieting in their volume, specificity, and consistency.”
     “Supervisors allegedly routinely referred to black workers as ‘nigger’ and ‘DAN (dumb ass nigger),’ with one supervisor reportedly stating ‘niggers aren’t smart enough’ to break production records, while others tolerate the routine use of epithets like ‘bologna lips,’ ‘yard ape,’ and ‘porch monkey,'” Gregory wrote.
     “these epithets and others were broadcast over the plant-wide radio system – comprising a network of walkie-talkies used to communicate – along with monkey noises and the songs ‘Dixie’ and ‘High Cotton,” he continued. “the workers’ declarations and depositions further suggest that … supervisors and the plant’s general manager consistently ignored racial harassment carried out by white workers, including the circulation of racist emails, 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.”
     The seven lead plaintiffs also claim that between 1999 and 2003, black workers were routinely denied promotion and of 611 total employees, Nucor employed only one black supervisor. Gregory said because the steel plant destroyed promotion bids prior to 2001, expert witnesses for the plaintiffs relied on “change-of-status” paperwork for calculating statistical evidence.
     Gregory was joined in his opinion by U.S. Circuit Judge Barbara Milano. But U.S. Circuit Judge G. Steven Agee dissented, calling the workers’ claims anecdotal and statistical unreliable .
     “The Eighth Circuit affirmed the denial of class certification in a case involving the same claims, the same experts, and the same defendant,” Agee wrote. “We should hardly take this troubled road in the name of “simple justice,”” he continued.
     Plaintiffs are represented by Robert L. Wiggins Jr. of Wiggins, Childs Quinn and Pantazis while Nucor is represented by Lisa Blatt of Blatt, Arnold and Porter.
     A representative from Blatt, Arnold and Porter told Courthouse News that they cannot comment on the suit due to an order from the district court.

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