Court Uses Novel Issue Certification Device To Sidestep Individualized Issues Otherwise Precluding Class Certification

Seyfarth Synopsis:  A group of female truck drivers sued their employer for policies allegedly resulting in a hostile work environment for and retaliation against women who complained of sexual harassment on the job.  Under Rules 23(b)(3) and 23(c)(4), the U.S. District Court for the Northern District of Iowa certified both a hostile work environment class and retaliation class on issues relating to the employer's liability.  Such certification was made possible by the drivers' bifurcation proposal, which involved a representative trial on aspects of liability and individualized trials on remaining aspects of liability and damages.  Employers should take note that there is a trend among some federal courts to use Rule 23 in novel ways to certify classes of employees to avoid confronting issues that, traditionally, would preclude class certification.