Trial News

The District of Nebraska has certified a class of thousands of Union Pacific Railroad Co. workers who claim that their employer unlawfully obtained their medical information and used it to remove them from their jobs even though their medical conditions did not affect their ability to perform those jobs. The court held that the putative class satisfied Federal Rule of Civil Procedure 23’s requirements for class certification to move forward with their employment disability discrimination claims. (Harris v. Union Pac. R.R. Co., 2019 WL 460388 (D. Neb. Feb. 5, 2019).)

In 2014, Union Pacific changed its “fitness for duty” policy to require employees to disclose certain health conditions—such as epilepsy or post-traumatic stress disorder. The plaintiffs claim that disclosure of those conditions resulted in automatic job removal. To make this determination, a company doctor and his team reviewed the employees’ medical records and based their recommendations for employees to be removed solely on this review. They did not conduct in-person physical examinations or consider the opinions of outside treating doctors.

Despite working for the defendant for years and having no problem fulfilling their job functions, the plaintiffs allege they were removed from work if it was determined they had a 1 percent chance of “sudden incapacitation” on the job within the next year. The plaintiffs claim the railroad violated the Americans with Disabilities Act by engaging in a pattern and practice of discrimination that resulted in disparate treatment of people with disabilities who were automatically screened out of their jobs: The fitness for duty policy has a disparate impact on people with disabilities, and it constituted an unlawful medical inquiry into whether employees had a disability. They filed a class action on behalf of employees subjected to the policy and moved for class certification.

The district court considered whether the plaintiffs’ proposed class met the four requirements for a class action under Rule 23(b): numerosity, commonality, typicality, and adequacy of representation. The first prong was satisfied, the court noted, because more than 7,000 potential class members have been identified. Regarding commonality and typicality, the defendant argued that it would need to evaluate each class member individually to determine whether they were qualified for their job or could be reasonably accommodated. The court disagreed, explaining that the fitness for duty policy—which is at the crux of the discrimination claims—was applied uniformly nationwide, that the same medical team made all the decisions, and that all employees subject to the policy were forced to disclose health conditions. In addition, the process for removing employees from work and the method of evaluating them for fitness to continue working was the same for everyone. The court reasoned that the plaintiffs would be presenting the same evidence regarding systemic disability discrimination in the company and that these claims were typical of the class. The court also determined that the named plaintiffs were adequate class representatives.

Next, the court analyzed whether the proposed class met the predominance and superiority requirements. The defendant contended that individual questions overwhelmed class issues, especially concerning damages. But the court disagreed, reiterating that the claims are based on the same pattern and practice of alleged discrimination and that the same evidence would be “used to establish class-wide proof.” The court also relied on this reasoning to reject the defendant’s argument that class adjudication was not a superior method for resolving the plaintiffs’ claims: “[t]o allow individual lawsuits would duplicate this proof over and over again.”

Minneapolis attorney David Schlesinger, a member of the plaintiffs’ legal team, said, “By granting class certification, the court allowed the plaintiffs to proceed as a class and then try the case in two phases. In the first phase, the jury will determine whether Union Pacific engaged in a pattern or practice of disability discrimination on a classwide basis. In the second stage, individual hearings will take place to determine each class member’s damages. The case alleges that Union Pacific has put numerous long-time employees out of work due to their disabilities (or perceived disabilities) even though they could perform their jobs. We have been working hard on this case for three years, and after the court’s grant of class certification, we are much closer to achieving justice for our clients.”