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Discrimination Class Actions
I. Executive Summary
Class action litigation in the discrimination space remains an area of prime focus of skilled class action litigators in the plaintiffs' bar.
Plaintiffs succeeded in certifying their cases at a slightly higher rate this past year. In 2025, courts granted class certification 50% of the time and denied certification in 50% of the cases. In contrast, in 2024, courts granted 53% of class certification motions and denied 47% of them.
Class actions challenging employment policies and practices has a robust history since passage of the Civil Rights Act of 1964. For decades, federal courts routinely granted class certification in nationwide employment discrimination class actions, which often spiked settlements that entailed huge pay-outs and across-the-board changes to HR systems and personnel practices. In turn, significant changes in the workplaces of Corporate America resulted from class action precedents, massive settlements, and injunctive relief orders.
This changed in large part over a decade ago when the U.S. Supreme Court decided Wal-Mart Inc. v. Dukes, et al., 564 U.S. 338 (2011). That decision reversed a class certification order in a pay and promotions lawsuit involving 1.5 million class members who asserted claims of sex discrimination in pay and promotions. In handing down this ruling in Wal-Mart, the Supreme Court tightened the legal requirements for securing class certification in general and with respect to discrimination lawsuits in particular. It simultaneously forced the plaintiffs' bar to adjust their strategies on how to prosecute class actions, while also fueling new defense strategies for opposing class certification motions. Suddenly gone were the days when nationwide class actions challenging hiring, compensation, and promotion policies of large corporations inevitably ended with across the board certification orders and big settlement checks.
But the pendulum appears to be swinging back, as courts are becoming increasingly inclined to find for plaintiffs in class certification rulings, and thereby raising the potential for large monetary remedies. This is especially true in the discrimination context, as society continues to grapple with widespread inequality in the wake of large-scale social justice campaigns like Black Lives Matter and the #MeToo movement. Businesses are being confronted with increasingly employee-friendly legislative changes and a more aggressive plaintiffs' bar.
But despite the rising rates of discrimination-based class action lawsuit filings, courts have remained steadfast in their application of Wal-Mart and allowing class actions to proceed only where all requirements have been satisfied. Whether it be establishing commonality across the putative class or satisfying the court's insistence for adequate representation, courts have not shied away from demanding litigants demonstrate compliance with Rule 23, readily dismissing lawsuits and denying class certification for cases that cannot clear this hurdle. This rigorous analysis to determine whether all prerequisites have been met frequently operates as the make-or-break point of any case.
In particular, plaintiffs often run into trouble meeting the criteria for commonality. In the discrimination arena, this typically requires plaintiffs to establish an alleged practice or policy of discrimination that is common across the putative class, including, as necessary, across departments and even state lines. But as defense counsel and courts alike are quick to point out, the class representative is burdened with establishing more than his or her own experience and attributing it across the prospective class to survive Rule 23(a) scrutiny. In this sense, a plaintiffs' certification burden must go beyond the run of the mill assertion, "I was harmed by discrimination, and others likely were too."
Ultimately, as the class action landscape continues to evolve, so too are the playbook theories of the plaintiff and defense bars. Counsel on both sides are becoming more sophisticated and creative in their approaches to prosecuting and defending class actions. Courts are facing increasing pressure to quickly and efficiently discern between properly pled actions and meritless litigation, not only to promote court expediency but also to spare businesses the incredible expense that accompanies class defense.
As a result, motions to dismiss and challenges to class certification are quickly turning into pivotal benchmarks in class action litigation. Still, the plaintiffs' bar remains undeterred. As public opinion of large businesses wanes, and while workplace inequality continues to grab headlines and remains in the forefront of the public eye, employers can expect discrimination class actions to reach even greater heights in 2026.
II. Significant Rulings In Employment Discrimination Class Actions In 2025
1. Rulings On Class Certification Motions Commonly Turn On Commonality, Numerosity, Or Typicality
Employers defeated class certification motions in discrimination lawsuits in 2025 by attacking the basis of the motions as insufficient under Rule 23. Hornbook case law demands that plaintiffs establish each element underlying Rule 23(a) and dictating a pathway for class certification under Rule 23(b). This type of defense strategy challenges the proof offered in support of the class certification motion.
In Loiseau, et al. v. Bozzuto's Inc., 2025 U.S. Dist. LEXIS 153121 (D. Conn. Feb. 21, 2025), the plaintiffs, a group of Black hourly employees, filed a class action alleging that the defendant discriminated against Black employees in terms of pay, work assignments, promotions, workplace discipline, and terminations, and subjected them to a hostile work environment. The plaintiffs sought class-wide injunctive relief, compensatory damages, and punitive damages. The plaintiffs filed a motion for class certification pursuant to Rule 23, and the court granted the motion in part and denied it in part. The plaintiffs sought to certify a class of all Black employees who worked within the defendant's wholesale operations in Connecticut between November 21, 2018, and the date of class certification. In opposition, the defendant argued the plaintiffs could not satisfy the commonality requirement for their disparate impact claims due to the discretion allowed in management decisions. The defendant contended that the policies in question did not apply uniformly across all employees, and thus, the plaintiffs failed to establish a common injury. The court found that the plaintiffs' class definition was overly broad and modified it to include only Black, hourly warehouse associates. The court determined that the plaintiffs satisfied the numerosity, commonality, typicality, and adequacy requirements of Rule 23(a) for a class of hourly warehouse associates. The court found commonality for the plaintiffs' disparate impact claims related to the defendant's six-month performance review system and Bid Policy, but not for the defendant's promotion policies. The court also ruled that the class met the commonality requirement for the plaintiffs' disparate treatment claims due to some alleged statistical evidence of discrimination. However, the court did not find commonality for the plaintiffs' hostile work environment claims, as the evidence was largely confined to the North Haven facility and did not extend to all the defendant's facilities. The court reasoned that the plaintiffs' statistical evidence demonstrated disparities in pay, discipline, and warehouse assignments, which supported their disparate treatment claims. The court opined that the plaintiffs' claims met the predominance requirement of Rule 23(b), as the resolution of both the plaintiffs' disparate impact and disparate treatment claims depend on generalized proof more than individualized proof, at least at the liability stage. Id. at 55. The court also concluded that a class action would be the superior method of adjudication, as the interest of the class members in maintaining separate actions was small, the court was not aware of any other litigation pending concerning the controversy, the court was not concerned about "concentrating the litigation of the claims in the particular forum," because all of the warehouses at issue were located in the district, and there was nothing to indicate to the court that the action would be less manageable than another complex case. Id. at 60-61. The court granted thereby granted the plaintiffs' motion in part, and certified a class of Black, hourly warehouse associates for the plaintiffs' disparate impact and disparate treatment claims under Rule 23(b)(3).
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