Oh, The Irony! Tenth Circuit Upholds Denial Of Class Certification In Nationwide Title VII Gender Discrimination Because Employer Failed To Follow Official Company Performance Management Process

On January 15, 2012, the U.S. Court of Appeals for the Tenth Circuit upheld a district court order denying class certification in a nationwide Title VII gender discrimination action in Tabor, et al. v. Hilti, Inc., 703 F.3d 1206 (10th Cir., 2013). While the decision is favorable for employers, it demonstrates the realities of a common workplace problem: varied and irregular application of a company-wide policy, and inadequate record-keeping in compliance with the same. 

Despite such a problem, the employer in this case was lucky. The varied application of the policy meant that plaintiffs could not meet the elements of Rule 23 to support class certification. As such, the Tenth Circuit’s ruling is one of the leading workplace class action decisions so far this year.

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