African American employees of Nucor brought a class action alleging (1) a pattern or practice of disparate treatment against African Americans with respect to promotions; (2) a subjective promotion procedure which allows white supervisors to make promotion decisions, with a disparate impact on African Americans; and (3) hostile work environment. The U.S. Fourth Circuit Court of Appeal held that the district court’s denial of certification was an abuse of discretion. First, the Court held that the direct evidence of discrimination established commonality, irrespective of the statistical analysis. Next, the Court held that the plaintiffs’ statistical evidence was sufficient. “The question before the district court was not whether the appellants have definitively proven discrimination” the Court emphasized, “rather, the question was whether the basis of appellants’ discrimination claims was sufficient to support class certification.” Finally, the Court rejected the argument that a conflict existed among classmembers who would be competing for the same promotions should injunctive relief be granted. The Court suggested that the case could be bi-furcated, to address liability first. “If, at the second stage of the proceeding, conflicts need to be resolved with regard to promotions, the district court can do so then.” Brown v. Nucor Corp., 576 F.3d 149 (4thCir. 2009).
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