FRANK v UNITED AIRLINES, 9815638
U.S. 9th Circuit Court of Appeals
FRANK v UNITED AIRLINES
9815638
LESLIE FRANK; PAT PARNELL; SUSAN
BRODERICK; CAROLE KIRK; NICHKOL
MELANSON; SANDRA HUFF; DIANE
DAVIS; SHARON BENJAMIN; SHARRON Nos. 98-15638
K. TAYLOR; BLAND LANE; JOAN 98-16687
BALLA WEAVER; DONNA DURKIN;
D.C. No.
ELLEN MCCORMICK,
CV-92-00692-CAL
Plaintiffs-Appellants,
OPINION
v.
UNITED AIRLINES, INC.,
Defendant-Appellee.
Appeals from the United States District Court
for the Northern District of California
Charles A. Legge, District Judge, Presiding
Argued and Submitted
July 12, 1999--San Francisco, California
Filed June 21, 2000
Before: Stephen Reinhardt, Diarmuid F. O'Scannlain, and
William A. Fletcher, Circuit Judges.
Opinion by Judge William A. Fletcher; Partial Concurrence
and Partial Dissent by Judge O'Scannlain
_________________________________________________________________
COUNSEL
Edith J. Benay, San Francisco, California, for the plaintiffs-
appellants.
Tom A. Jerman, Douglas E. Dexter, and David J. Reis,
O'Melveny & Myers, San Francisco, California, for the
defendant-appellee.
_________________________________________________________________
OPINION
W. FLETCHER, Circuit Judge:
From 1980 to 1994, defendant United Airlines, Inc.
("United") required flight attendants to comply with maxi-
mum weight requirements based on sex, height and age. Fail-
ure to maintain weight below the applicable maximum
subjected a flight attendant to various forms of discipline,
including suspension without pay and termination. In 1992,
plaintiffs filed this action on behalf of a class of female flight
attendants to challenge these weight requirements.
Plaintiffs contend that by adopting a discriminatory weight
policy and enforcing that policy in a discriminatory manner,
United discriminated against women and older flight atten-
dants in violation of Title VII of the Civil Rights Act of 1964
("Title VII"), 42 U.S.C. S 2000e; the Age Discrimination in
Employment Act ("ADEA"), 29 U.S.C. SS 621-634; the
Americans with Disabilities Act ("ADA"), 42 U.S.C.
SS 12101-12213; and the California Fair Employment and
Housing Act ("FEHA"), Cal. Gov't Code SS 12900-12996.
The district court granted summary judgment for defendant on
all of plaintiffs' class and individual claims. We have jurisdic-
tion under 28 U.S.C. S 1291. We reverse in part and affirm in
part.
I
During the 1960s and early 1970s, the standard practice
among large commercial airlines was to hire only women as
flight attendants. The airlines required their flight attendants
to remain unmarried, to refrain from having children, to meet
weight and appearance criteria, and to retire by the age of 35.
See Gerdom v. Continental Airlines, Inc., 692 F.2d 602, 605-
06 (9th Cir. 1982) (en banc) (collecting cases). Like other air-
lines, defendant United had a long-standing practice of requir-
ing female flight attendants to maintain their weight below
certain levels. After it began hiring male flight attendants in
the wake of Diaz v. Pan Am. World Airways, Inc. , 442 F.2d
385 (5th Cir. 1971), United applied maximum weight require-
ments to both male and female flight attendants. 1 Flight atten-
dants -- a group comprised of approximately 85% women
during the time period relevant to this suit -- are the only
employees United has ever subjected to maximum weight
requirements. United abandoned its weight requirements for
flight attendants in 1994.2
Between 1980 and 1994, United required female flight
attendants to weigh between 14 and 25 pounds less than their
male colleagues of the same height and age. For example, the
maximum weight for a 5' 7", 30-year-old woman was 142
pounds, while a man of the same height and age could weigh
up to 161 pounds. A 5' 11", 50-year-old woman could weigh
up to 162 pounds, while the limit for a man of the same height
and age was 185 pounds. United's weight table for men dur-
ing this period was based on a table of desirable weights and
heights published by the Metropolitan Life Insurance Com-
pany ("MetLife"). The comparable weight table for women
was based on a table of maximum weights established by
Continental Air Lines ("Continental"). A comparison of Unit-
ed's MetLife-derived limits for men to the Continental-
derived weight limits for women reveals that United generally
limited men to maximum weights that corresponded to large
body frames for men on the MetLife charts but generally lim-
ited women to maximum weights that corresponded to
medium body frames for women on MetLife charts.
The thirteen named plaintiffs worked for United as flight
attendants while United's 1980-1994 weight policy was in
effect. The named plaintiffs attempted to lose weight by vari-
ous means, including severely restricting their caloric intake,
using diuretics, and purging. Ultimately, however, plaintiffs
were each disciplined and/or terminated for failing to comply
with United's maximum weight requirements. In 1992, plain-
tiffs filed this employment discrimination action. They sought
to represent plaintiff classes of female flight attendants for
claims of sex and age discrimination, and they asserted vari-
ous claims of individual discrimination.
On March 15, 1994, the parties stipulated to certify a plain-
tiff class for the Title VII sex discrimination claim and a
plaintiff subclass of members over 40 years old for the ADEA
age discrimination claim. On April 12, 1994, the district court
certified a Title VII class comprised of
all female flight attendants employed by United, cur-
rently or in the future, and all female flight atten-
dants who were terminated, retired or resigned on or
after January 5, 1989, as a result of their failure to
comply with United's weight requirements[;]
and an ADEA subclass comprised of
all female flight attendants, age 40 or above,
employed by United currently, or who were termi-
nated, retired or resigned after January 5, 1989 as a
result of their failure to comply with United's weight
requirements.
Neither party challenges the 1989 cutoff date for certification
of the class.
The parties stipulated in the class certification order that
individual notice would be sent to all members of the Title
VII class and all potential members of the ADEA subclass.
Although the order stated that the class was certified under
Federal Rule of Civil Procedure 23(b)(2), as a so-called "in-
junction" class action, the notice actually sent satisfied the
heightened notice required for a Rule 23(b)(3) "damages"
class action, set forth in Rule 23(c)(2). The parties agree that
the suit subsequently became a Rule 23(b)(3) class action
after United abolished its weight program in 1994, thereby
eliminating the need for injunctive relief. A form of notice,
attached to the stipulation, provided that class members could
"opt out" of the class certified for the Title VII claim. A sec-
ond form of notice, also attached to the stipulation, provided
that potential class members could "opt in" to the subclass
certified for the ADEA claim.
Shortly after the class and subclass were certified, United
suspended its weight policy "until further notice " and returned
to service all attendants then held out of service under its
weight policy. On August 16, 1994, United eliminated the
weight policy entirely. In 1995, United offered to reinstate
many class and subclass members who had been terminated
under the weight policy. United did not require individuals
accepting reinstatement to waive any potential claims against
it arising from earlier discipline or termination.
The parties filed cross-motions for summary judgment on
plaintiffs' class claim that United's weight policy discrimi-
nated against female flight attendants in violation of Title VII.
On August 16, 1995, the district court denied plaintiffs'
motion and granted summary judgment for United. The court
held that any facial attack on the weight policy was foreclosed
by claim preclusion resulting from Air Line Pilots Ass'n Int'l
v. United Air Lines, Inc. ("ALPA"), 26 F.E.P. Cases 607
(E.D.N.Y. 1979), a decision resolving a facial challenge to an
earlier United weight policy. The district court permitted
plaintiffs to go forward under Title VII only on claims that
United discriminated in the administration of its weight pol-
icy.
On February 26, 1997, the district court granted summary
judgment for United on plaintiffs' remaining class claims of
sex and age discrimination. The court held that plaintiffs had
failed to present evidence of a pattern or practice of sex or age
discrimination in the administration of the weight policy. The
court further held that plaintiffs could not assert a disparate
impact claim for sex discrimination based on United's admin-
istration of medical exceptions to the weight policy. Finally,
applying the Tenth Circuit's decision in Ellis v. United Air-
lines, 73 F.3d 999 (10th Cir. 1996), the court held that a dis-
parate impact theory was not available under the ADEA.
On March 11, 1998, the district court entered an order
granting summary judgment for United on all of plaintiffs'
individual claims. The court decertified the age and sex dis-
crimination classes and denied plaintiffs' application for costs.3
II
We review de novo decisions granting summary judgment.
See Robi v. Reed, 173 F.3d 736, 739 (9th Cir. 1999). Viewing
the evidence in the light most favorable to plaintiffs, we must
determine whether genuine issues of material fact preclude
summary judgment and whether the district court correctly
applied the relevant substantive law. See Godwin v. Hunt
Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998). Questions
of claim and issue preclusion are also reviewed de novo. See
C. D. Anderson & Co., Inc. v. Lemos, 832 F.2d 1097, 1100
(9th Cir. 1987).
III
[1] As a threshold matter, plaintiffs contend that the district
court erred in holding that claim preclusion4 foreclosed their
facial attack under Title VII. "[A] valid final adjudication of
a claim precludes a second action on that claim or any part of
it." Baker ex rel. Thomas v. General Motors Corp., 522 U.S.
222, 233 n.5 (1998). For claim preclusion to apply, there must
be (1) an identity of claims in the two actions; (2) a final judg-
ment on the merits in the first action; and (3) identity or priv-
ity between the parties in the two actions. See Western Radio
Servs. Co. v. Glickman, 123 F.3d 1189, 1192 (9th Cir. 1997)
(citing Blonder-Tongue Labs., Inc. v. University of Ill.
Found., 402 U.S. 313, 323 -24 (1971)).
The district court concluded that plaintiffs' facial Title VII
claim is precluded by the 1979 district court decision in ALPA
v. United Air Lines, Inc., cited above. Plaintiffs in ALPA, the
Air Line Pilots Association and individual named plaintiffs,
claimed on behalf of a class of United flight attendants that
United's 1977 weight policy discriminated against female
flight attendants in violation of Title VII. Plaintiffs and United
stipulated to class certification, and the district court certified
a Rule 23(b)(2) class defined as
all female flight attendants who are employed by
United or who may become so employed in the
future, and all former female flight attendants who
were employed by United on or after October 14,
1971 and were suspended, removed from service, or
terminated by United for failure to meet United's
flight attendant weight standards.
Id. at 609. Notice to current employees was accomplished by
placing the notice in their employee boxes. Notice to former
employees was attempted by sending it to their last-known
addresses. Because the class was certified under Rule
23(b)(2), plaintiffs could not opt out of the class.
The district court in ALPA found that United's weight stan-
dards were not facially discriminatory, see 23 F.E.P. Cases at
615, 618, but that United had discriminated in applying those
standards. See id. at 621-22. The court enjoined United from
discriminating on the basis of sex in enforcing its weight stan-
dards, and it ordered reinstatement, back pay, and seniority
credit for female flight attendants who had suffered discrimi-
nation. See id. at 626. The court wrote:
United is free to continue using the flight attendant
weight standards promulgated by United in May
1977. Nothing in the court's decision or order is
intended to pass upon the validity of any other
weight standard for male or female flight attendants
that United might adopt in the future. . . . United's
current weight standards for male and female flight
attendants are valid, . . . United is not prohibited
from adopting other standards, and . . . the validity
of any other standard has not been determined.
Id. at 626 (emphasis added).
After entry of judgment and while cross-appeals were still
available, the parties settled the litigation. For their part,
plaintiffs agreed not to appeal the district court's holding that
the 1977 weight policy was not facially discriminatory. For its
part, United agreed to alter its weight charts by slightly
increasing the weight limits and agreed not to appeal the dis-
trict court's decision that United had discriminated in admin-
istering the weight policy. The terms of the settlement were
described in a letter to the district court,5 but the court was
never asked to approve the settlement, as it would have been
required to do under Rule 23(e) if the parties had entered into
the same settlement prior to entry of judgment.
[2] For several reasons, the district court in this case erred
in giving claim preclusive effect to the ALPA judgment. First,
the plaintiffs in this suit assert claims based on alleged Title
VII violations arising after 1980. A claim arising after the
date of an earlier judgment is not barred, even if it arises out
of a continuing course of conduct that provided the basis for
the earlier claim. See Lawlor v. Nation Screen Serv. Corp.,
349 U.S. 322, 328 (1955) ("While the 1943 judgment pre-
cludes recovery on claims arising prior to its entry, it cannot
be given the effect of extinguishing claims which did not even
then exist and which could not possibly have been sued upon
in the previous case."). Because the judgment in ALPA was
entered in 1979, under Lawlor it cannot preclude claims based
on events occurring after that date. See id.; see also Interna-
tional Techs. Consultants, Inc. v. Pilkington, PLC , 137 F.3d
1382, 1388 (9th Cir. 1998) ("By winning the first action, the
defendants `did not acquire immunity in perpetuity from the
antitrust laws.' ").
[3] Second, plaintiffs' Title VII claim is based on a differ-
ent weight policy from that challenged in ALPA . The central
criterion in determining whether there is an identity of claims
between the first and second adjudications is "whether the
two suits arise out of the same transactional nucleus of facts."
Costantini v. Trans World Airlines, 681 F.2d 1199, 1201-02
(9th Cir. 1982) (setting forth test for identity of claims); see
also Hawaiian Tel. Co. v. Public Utils. Comm'n, 827 F.2d
1264 (9th Cir. 1987). Recognizing the possibility of litigation
over a new weight policy, the district court in ALPA explicitly
stated that it was not passing on the validity of any weight
standards United might adopt in the future. Because United
changed its weight tables and weight policy in 1980 as part
of the post-judgment settlement, we hold that plaintiffs'
claims in this case do not arise from the "same transactional
nucleus of facts" underlying the claims in ALPA.
[4] Third, notice in ALPA was not sufficient under Rule 23
to preclude monetary claims in later suits, for the class in
ALPA was certified and given notice as a Rule 23(b)(2) "in-
junction" class action. The present suit, by contrast, is a Rule
23(b)(3) "damages" class action. Rule 23(c)(2) requires a
higher standard of notice for a Rule 23(b)(3) class action,
under which individual notice must be provided to "all mem-
bers who can be identified through reasonable effort." See
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974). Fur-
ther, all potential members in a Rule 23(b)(3) class must be
allowed to opt out of the class. In a Rule 23(b)(2) class action,
by contrast, there is no requirement for individualized notice
beyond that required by due process, and class members are
not allowed to opt out. We are unable to determine on the
record before us whether the notice given in ALPA was dis-
tributed to all class members who would have been entitled to
notice of a Rule 23(b)(3) class action. However, we do know
that class members in ALPA could not opt out of the class.
Under Eisen, class members in a Rule 23(b)(3) class may be
bound to the result of that action only if the notice and opt-out
requirements applicable to Rule 23(b)(3) actions are satisfied.
Because ALPA did not satisfy the requirements applicable to
a Rule 23(b)(3) class action, ALPA cannot preclude the Rule
23(b)(3) class action in this case.
[5] Fourth, to the degree that United seeks to rely on the
post-judgment settlement in ALPA, we need only point out
that the settlement is not incorporated into a judgment and
therefore cannot have preclusive effect. See Hydranautics v.
Filmtec Corp., 204 F.3d 880, 885 (9th Cir. 2000). But even
if it were a judgment, we cannot know whether it sufficiently
protected the interests of the unnamed class members as that
class then existed. A class action settlement can be approved
and entered as a judgment only after a proceeding under Rule
23(e) at which unnamed class members are invited to express
their opinions of the proposed settlement. Such a proceeding,
often called a "fairness hearing," is designed to protect the
unnamed members of the class against the misjudgment (and,
occasionally, the self-interest) of the named plaintiffs and
class attorneys. We are simply not allowed to give preclusive
effect to a post-judgment settlement that was never subjected
to the scrutiny contemplated by Rule 23(e) and never entered
as a judgment.
Finally, we note that the terms of the settlement in ALPA
appear not to protect the interests of flight attendants, such as
plaintiffs in this case, who might later have been subjected to
discipline for failing to comply with United's post-settlement
weight restrictions.6 The class representatives in ALPA failed
to appeal the district court's decision that United's weight
policy did not facially discriminate on the basis of sex. They
elected, instead, to accept reinstatement and back pay for the
members of the class who had been subjected to discrimina-
tory application of the 1977 weight policy. Female flight
attendants who were then employed and had not previously
been adversely affected by the weight limits, but who might
have been so affected in the future, had an interest in appeal-
ing the district court's order on the legality of United's policy.
Those flight attendants had no interest in obtaining reinstate-
ment and back pay. Similarly, women not then employed (but
later hired) as flight attendants by United had no interest in
back pay or reinstatement. Consequently, when the class rep-
resentatives chose not to appeal the adverse ruling on the
facial validity of the weight policy, it abandoned any repre-
sentation of the interests of those present and potential future
class members in order to protect present class members seek-
ing back pay and reinstatement.7See Tice v. American Air-
lines, 162 F.3d 966, 969 (7th Cir. 1999), cert. denied, 119
S.Ct. 2395 (1999) (refusing to give preclusive effect to prior
class action because plaintiffs had been too young to join in
earlier litigation and their interests had diverged from those of
the earlier class representatives insofar as younger pilots
would benefit from age discrimination against older pilots);
Rutherford v. City of Cleveland, 137 F.3d 905, 910 (6th Cir.
1998) (holding decision to abandon opposition to consent
decree governing hiring in exchange for amendment to con-
sent decree governing promotion demonstrated failure to ade-
quately represent interests of applicants); Gonzales v.
Cassidy, 474 F.2d 67 (5th Cir. 1973) (holding failure to
appeal denial of retroactive relief constituted inadequate rep-
resentation). Because the interests of the plaintiff class in this
suit were not adequately represented by the plaintiffs in
ALPA, we cannot give preclusive effect in this suit to the post-
judgment settlement in ALPA.
United contends in a two-sentence footnote in its brief to
this court that even if plaintiffs' challenge to United's weight
policy is not barred by claim preclusion, it is barred by issue
preclusion. United is correct in stating that "once an issue is
actually and necessarily determined by a court of competent
jurisdiction, that determination is conclusive in subsequent
suits based on a different cause of action involving a party to
the prior litigation." Montana v. United States, 440 U.S. 147,
153 (1979). But the requirements of identity of parties, iden-
tity of the factual claim or issue, adequate notice, and ade-
quate representation apply to both claim and issue preclusion.
See Richards v. Jefferson County, Ala., 517 U.S. 793, 800-01
(1996) (setting forth due process requirements for granting
prior judgment preclusive effect); Hansberry v. Lee, 311 U.S.
32, 42-43 (1940) (same). The particulars of those require-
ments are different in claim preclusion and issue preclusion,
but the underlying ideas are substantially the same. Because
United does not and, indeed, could not, seriously argue that
issue preclusion applies on the facts of this case, we think it
unnecessary to analyze the question at length.
We therefore proceed to the merits of plaintiffs' claims.
IV
[6] Title VII makes it unlawful "to discriminate against any
individual with respect to . . . compensation, terms, condi-
tions, or privileges of employment, because of such individu-
al's . . . sex . . . ." 42 U.S.C. S 2000e-2(a)(1). Courts have
recognized two bases on which plaintiffs may proceed: dispa-
rate treatment and disparate impact. See International Bhd. of
Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977).
Disparate treatment arises when an employer "treats some
people less favorably than others because of their .. . sex." Id.
Disparate impact arises when an employer's practice is "fa-
cially neutral . . . but . . . in fact fall[s ] more harshly on one
group than another." Id. Disparate treatment is permissible
under Title VII only if justified as a bona fide occupational
qualification ("BFOQ"). A BFOQ is a qualification that is
reasonably necessary to the normal operation or essence of an
employer's business. See 42 U.S.C. S 2000e-2.
[7] An employer's policy amounts to disparate treatment if
it treats men and women differently on its face. For example,
in UAW v. Johnson Controls, 499 U.S. 187 (1991), defendant
Johnson Controls barred fertile women, but not fertile men,
from jobs entailing high levels of lead exposure. The Court
concluded this was disparate treatment: "Johnson Controls'
policy is not neutral because it does not apply to the reproduc-
tive capacity of the company's male employees in the same
way as it applies to that of the females." Id. at 199-200. The
Court has made it clear that such an "explicit gender-based
policy is sex discrimination under S 703(a)[of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. S 2000e-2(a)] and thus
may be defended only as a BFOQ." Id. at 200.
Similarly, in Healy v. Southwood Psychiatric Hosp., 78
F.3d 128 (3d Cir. 1996), defendant Southwood Psychiatric
Hospital explicitly treated men and women differently in
scheduling its employees' shifts. The court held that "South-
wood's gender-based policy is not a pretext for discrimination
-- it is per se intentional discrimination." Id. at 131. "When
open and explicit use of gender is employed . . . the system-
atic discrimination is in effect `admitted' by the employer,
and the case will turn on whether such overt disparate treat-
ment is for some reason justified under Title VII. A justifica-
tion for overt discrimination may exist if the disparate
treatment is . . . based on a BFOQ." Id. at 132. The court in
Healy held that facial discrimination was permissible as a
BFOQ because staffing both males and females on all shifts
was necessary to provide the therapeutic care that was the "es-
sence" of the hospital's business. See id. at 132-33.
[8] We view plaintiffs' case as analytically indistinguish-
able from Johnson Controls and Healy. The uncontroverted
evidence shows that United chose weight maximums for
women that generally corresponded to the medium frame cat-
egory of MetLife's Height and Weight Tables. By contrast,
the maximums for men generally corresponded to MetLife's
large frame category. The bias against female flight attendants
infected United's weight maximums for all age groups.8
Because of this consistent difference in treatment of women
and men, we conclude that United's weight policy between
1980 and 1994 was facially discriminatory.9
[9] On its face, United's weight policy thus "applie[d] less
favorably to one gender." Gerdom v. Continental Airlines,
692 F.2d 602, 608 (9th Cir. 1982) (en banc). Under United's
policy, men could generally weigh as much as large-framed
men whether they were large-framed or not, while women
could generally not weigh more than medium-framed women.
As we held in Gerdom, "[w]here a claim of discriminatory
treatment is based upon a policy which on its face applies less
favorably to one gender . . . a plaintiff need not otherwise
establish the presence of discriminatory intent. " Id.
[10] United defends its weight tables as permissible
"grooming" or appearance standards. It is true that not all sex-
differentiated appearance standards constitute disparate treat-
ment that must be justified under Title VII as BFOQs. An
appearance standard that imposes different but essentially
equal burdens on men and women is not disparate treatment.
For example, in Fountain v. Safeway Stores, Inc., 555 F.2d
753 (9th Cir. 1977), we held that a store may impose different
hair length requirements on men and women, and may require
men but not women to wear neckties. As we wrote in that
case, "regulations promulgated by employers which require
male employees to conform to different grooming and dress
standards than female employees is not sex discrimination
within the meaning of Title VII." Id. at 754.
[11] We need not decide whether a rule or regulation that
compels individuals to change or modify their physical struc-
ture or composition, as opposed to simply presenting them-
selves in a neat or acceptable manner, qualifies as an
appearance standard. Even if United's weight rules consti-
tuted an appearance standard, they would still be invalid. A
sex-differentiated appearance standard that imposes unequal
burdens on men and women is disparate treatment that must
be justified as a BFOQ. Thus, an employer can require all
employees to wear sex-differentiated uniforms, but it cannot
require only female employees to wear uniforms. See Carroll
v. Talman Fed. Sav. & Loan Ass'n of Chicago, 604 F. 2d
1028 (7th Cir. 1979). An airline can require all flight atten-
dants to wear contacts instead of glasses, but it cannot require
only its female flight attendants to do so. See Laffey v. North-
west Airlines, Inc., 366 F. Supp. 763 (D.D.C. 1973); see also
Nadine Taub, Keeping Women in Their Place: Stereotyping
Per Se as a Form of Employment Discrimination, 21 B.C. L.
Rev. 345, 387 (1980).
[12] We also need not consider whether separate weight
standards for men and women in themselves constitute dis-
criminatory treatment under Johnson Controls. Even assum-
ing that United may impose different weight standards on
female and male flight attendants, United may not impose dif-
ferent and more burdensome weight standards without justify-
ing those standards as BFOQs.
United is thus entitled to use facially discriminatory weight
charts only if it can show that the difference in treatment
between female and male flight attendants is justified as a
BFOQ. See Johnson Controls, 499 U.S. at 200; Healy, 78
F.3d at 131. The burden is on United to show that its policy
weight fits in this "extremely narrow exception to the general
prohibition of discrimination on the basis of sex. " Dothard v.
Rawlinson, 433 U.S. 321, 334 (1977). To escape summary
judgment, United must raise a genuine issue as to whether its
discriminatory weight maximums are "reasonably necessary"
to the "normal operation" of its "particular business," and that
they concern job-related skills and aptitudes. Johnson Con-
trols, 499 U.S. at 187; 42 U.S.C. S 2000e-2(e)(1).
[13] United provided no evidence that its facially discrimi-
natory weight standard is a BFOQ. United made no showing
that having disproportionately thinner female than male flight
attendants bears a relation to flight attendants' ability to greet
passengers, push carts, move luggage, and, perhaps most
important, provide physical assistance in emergencies. The
only evidence in the record is to the contrary. Far from being
"reasonably necessary" to the "normal operation" of United's
business, the evidence suggests that, if anything, United's dis-
criminatory weight requirements may have inhibited the job
performance of female flight attendants. We therefore reverse
the decision of the district court and hold that because Unit-
ed's policy of applying medium-frame weight maximums to
female flight attendants and large-frame weight maximums to
male flight attendants is facially discriminatory and not justi-
fied as a BFOQ, plaintiffs are entitled to summary judgment
on their disparate treatment class claim.10
V
[14] The ADEA prohibits employers from discriminating
against "any individual with respect to his compensation,
terms, conditions, or privileges of employment because of
such individual's age." 29 U.S.C. S 623(a)(1). The district
court correctly concluded that a disparate treatment class
claim is not available to plaintiffs because United's weight
policy discriminated on the basis of sex and weight, not on the
basis of age. An employer does not violate the ADEA by dis-
criminating based on a factor that is merely empirically corre-
lated with age. See Hazen Paper Co. v. Biggens , 507 U.S.
604, 609-11 (1993); Ellis v. United Airlines, Inc., 73 F.3d 999
(10th Cir. 1996) (concluding that United's weight requirement
did not violate ADEA).
[15] Plaintiffs should, however, be permitted to go forward
with their age discrimination class claim under a disparate
impact theory.11 In its order of February 26, 1997, the district
court noted that it had previously found, on August 16, 1995,
that plaintiffs' age-based disparate impact claim presented tri-
able issues of fact. But the district court concluded that the
Supreme Court's decision in Hazen, as interpreted by the
Tenth Circuit in Ellis in 1996, foreclosed a disparate impact
claim in an ADEA case. We have since squarely decided that
a disparate impact claim is cognizable in an ADEA case. See
Arnett v. California Pub. Employees Retirement Sys. , 179
F.3d 690, 696 (9th Cir. 1999) vacated and remanded on other
grounds, 120 S.Ct. 930 (2000). The Supreme Court vacated
our decision in Arnett and remanded for further consideration
in light of Kimel v. Florida Bd. of Regents, 120 S.Ct. 631
(2000), in which the Court held that the ADEA does not abro-
gate the Eleventh Amendment. The Eleventh Amendment
issue is irrelevant to a case, such as this one, in which a pri-
vate rather than state entity is a defendant, and the Court's
vacation of our decision has no bearing on the correctness of
our conclusion that a disparate impact claim is cognizable
under the ADEA. We see no reason to depart from our con-
clusion in Arnett and we again hold that a disparate impact
claim is cognizable under the ADEA. See also EEOC v. Local
350, Plumbers and Pipefitters, 998 F.2d 641, 648 n.2 (9th Cir.
1993). We therefore conclude that plaintiffs should be
allowed to proceed with their disparate impact class claim.12
VI
[16] The district court concluded that none of the named
plaintiffs presented viable individual claims of discrimination
under Title VII, the ADEA, the ADA, and FEHA. In light of
our holding on the class claim under Title VII, we reverse
summary judgment for defendant on named plaintiffs' indi-
vidual claims of sex discrimination. Similarly, in light of our
holding on the class claim under the ADEA, we reverse sum-
mary judgment on named plaintiffs' individual claims of age
discrimination. On remand, the district court should reassess
their individual claims under Title VII and the ADEA and
their corresponding individual claims under FEHA in light of
this opinion.
[17] We affirm the district court's decision granting sum-
mary judgment for United on named plaintiffs' individual
claims under the ADA and their corresponding claims under
FEHA. The district court correctly concluded that none of the
named plaintiffs presented evidence to make a prima facie
case that their eating disorders "substantially limited" a major
life activity and were therefore disabilities within the meaning
of the ADA. See Albertsons, Inc. v. Kirkingburg , 119 S. Ct.
2162, 2169 (1999). A major life activity is a function such as
"caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working. " 29
C.F.R. S 1630.2. While eating disorders can substantially
limit major life activities, they have not presented evidence
that their eating disorders have that effect.
With respect to the named plaintiffs' other asserted disabili-
ties, the district court correctly concluded that none of the
named plaintiffs had exhausted their administrative remedies
by filing charges with the EEOC or with California's Depart-
ment of Fair Employment and Housing. Named plaintiffs did
file charges claiming disability discrimination based on obe-
sity, but obesity is not like or reasonably related to other con-
ditions, such as cancer, from which plaintiffs allegedly suffer
and on which they base their other individual charges of dis-
crimination. Named plaintiffs have therefore not exhausted
their administrative remedies with respect to these conditions.
See Yamaguchi v. United States Dep't of the Air Force, 109
F.3d 1475, 1480 (9th Cir. 1997).
VII
Because the district court should have granted summary
judgment to plaintiffs on their Title VII disparate treatment
class claim and should have denied United's motion for sum-
mary judgment on plaintiffs' disparate impact ADEA class
claim, we reverse the district court's decertification of the
class and denial of plaintiffs' application for an award of
costs.
CONCLUSION
For the foregoing reasons, we REVERSE the district
court's grant of summary judgment to defendant on plaintiffs'
disparate treatment class claim under Title VII, and we
REVERSE its denial of plaintiffs' motion for summary judg-
ment on that claim. We AFFIRM the district court's grant of
summary judgment on plaintiffs' disparate treatment class
claim under the ADEA, and we REVERSE its grant of sum-
mary judgment to defendant on plaintiffs' disparate impact
class claim under the ADEA. We similarly REVERSE and
AFFIRM the district court's rulings on plaintiffs' class
claims under FEHA that correspond to their class claims
under Title VII and the ADEA. We REVERSE the district
court's grant of summary judgment to defendant on plaintiffs'
individual claims under Title VII, the ADEA, and correspond-
ing claims under FEHA. We AFFIRM the district court's
grant of summary judgment to defendant on plaintiffs' indi-
vidual claims under the ADA and corresponding claims under
FEHA. We REVERSE the district court's class decertifica-
tion and denial of plaintiffs' application for award of costs in
the district court.
REVERSED in part, AFFIRMED in part, and
REMANDED for further proceedings consistent with this
opinion. Each party shall bear its own costs on appeal.
_________________________________________________________________
O'SCANNLAIN, Circuit Judge, concurring in part and dis-
senting in part:
I fully concur in the court's affirmance of the district
court's summary judgment for United on the plaintiffs' "dis-
parate treatment" claims under the Age Discrimination in
Employment Act and individual claims under the Americans
with Disabilities Act. I must respectfully dissent, however,
from the reversal of the district court's grant of summary
judgment for United on the plaintiffs' remaining claims under
Title VII and the Age Discrimination in Employment Act.1
I
Although the majority deploys a raft of arguments in the
alternative to support its holding that the plaintiffs' facial
attack on United's weight policy is not precluded by the judg-
ment entered in Air Line Pilots Association, International v.
United Air Lines, Inc. ("ALPA"), 26 F.E.P. Cases 607
(E.D.N.Y. 1979), none of those arguments is compelling--
indeed, some of them conflict fundamentally with preclusion
doctrine, in my view.2
A
The majority's first two arguments against granting the
ALPA judgment preclusive effect in this litigation are that the
relevant claim under Title VII of the Civil Rights Act of 1964
("Title VII"), 42 U.S.C. S 2000e, did not "arise" until after
1979 (i.e., after that judgment was entered), supra at 6672,
and that "the claim is based on a different weight policy from
that challenged in ALPA," supra at 6673. (As an initial matter,
these two contentions seem to me to be part and parcel of the
same argument. The claim did not "arise" before 1979 either
because the ALPA plaintiffs did not think (or bother) to make
it before then or because the distinct factual circumstances--
United's implementation of its new weight policy--did not
obtain before then. If the majority's reference to the "arising"
of the plaintiffs' claim is captured by the second possible
reading, the majority's first two arguments are logically indis-
tinguishable.
It is plain that the first possibility cannot militate against
giving the ALPA judgment preclusive effect, notwithstanding
the decontextualized dictum from International Technologies
Consultants, Inc. v. Pilkington, PLC, 137 F.3d 1382, 1388
(9th Cir. 1998), that the majority quotes for the overstated
proposition that prior favorable judgments do not "preclude
claims based on events occurring [there]after. " See supra at
6673 (" `By winning the first action, the defendants `did not
acquire immunity in perpetuity from the antitrust laws.' ' ").
As the very purpose of preclusion doctrine "is to protect a
defendant from being worn down by a plaintiff who sues him
over and over again for the same allegedly wrongful con-
duct," Marrese v. American Acad. of Orthopaedic Surgeons,
726 F.2d 1150, 1152 (7th Cir. 1984), rev'd on other grounds,
470 U.S. 373 (1985), someone who has once successfully
defended his allegedly obnoxious behavior in court is indeed
presumptively immune from suit thereon (by the same parties)
though he should persist in his offensive behavior thereafter.
Cf. Go-Video, Inc. v. Matsushita Elec. Indus. Co. (In re Dual-
Deck Video Cassette Recorder Antitrust Litig.), 11 F.3d 1460,
1464 (9th Cir. 1993) (giving prior judgment preclusive effect
because the subsequent claim appeared to rely on the mis-
placed theory "that every day is a new day, so doing the same
thing today as yesterday is distinct from what was done yes-
terday.").
It is conceivable, of course, that United's new weight pol-
icy might avoid the preclusive effect of the ALPA judgment
even though the mere passage of time could not."Material
operative facts occurring after the decision of an action with
respect to the same subject matter may in themselves. . .
comprise a transaction which may be made the basis of a sec-
ond action not precluded by the first." Restatement 2d of
Judgments S 24 cmt. a; see Costantini v. Trans World Air-
lines, 681 F.2d 1199, 1202 (9th Cir. 1982) (noting that
"whether the two suits arise out of the same transactional
nucleus of facts" is "the most important" criterion in deter-
mining whether the judgment in an earlier lawsuit precludes
litigation of a second). The majority summarily concludes that
United's new weight policy is in fact a distinct transaction
because it was "part of the post-judgment settlement" reached
after ALPA. Like the district court, I think it plain that an
across-the-board increase in maximum permissible weights
and relaxed standards for older flight attendants does not
amount to a "[m]aterial operative fact[ ]" with respect to an
allegation that those maxima are sexually discriminatory. In
order for uniform, absolute increases--which is essentially all
that is "new" on the face of United's post-1979 weight policy
--to be relevant to a discrimination claim, the margin of the
increase itself must be more or less accommodating to one
gender than another. Such a claim has not been made in the
course of this litigation and is not credible on its face. The
lockstep increases in maximum permissible weights, in short,
are no more material to the plaintiffs' cause of action than the
possibility that the new policy was printed and circulated on
a different color of paper.
The fact that the plaintiffs' Title VII claims in this case
arise from United's new weight policy rather than its pre-
decessor is not material to a claim of sex discrimination
because the new policy does not differ from the old one in any
way that is itself material to the plaintiffs' claim. Thus the fact
that the policy was changed after the ALPA judgment cannot
alone defeat that judgment's preclusive effect. Cf. EEOC v.
American Airlines, Inc., 48 F.3d 164, 169 (5th Cir. 1995) ("It
is not enough to avoid the preclusive effect of the prior deter-
mination . . . to show merely a change in facts: a change must
have occurred in facts that . . . were of controlling signifi-
cance."). To hold otherwise, as the court does today, cabins
preclusion doctrine so narrowly as to render it useless, for a
plaintiff hoping to evade it might do so simply by emphasiz-
ing irrelevant distinctions in his pleadings.3
B
The majority's third argument against granting preclusive
effect to the judgment entered in ALPA is that the procedural
protections for absent class members in that litigation were
insufficient to bar the individual claims of those absent class
members for monetary relief. In particular, the majority notes
that the ALPA court certified the plaintiff class in that case
under Fed. R. Civ. P. 23(b)(2), which applies to actions pre-
dominantly for declaratory and injunctive relief and does not
require the same level of procedural protections for absent
class members that a "damages" action brought by a class cer-
tified under Fed. R. Civ. P. 23(b)(3) has. See supra at 6673.
In a class action under Rule 23(b)(3), "the court[must] direct
to the members of the class the best notice practicable under
the circumstances, including individual notice to all members
who can be identified through reasonable effort, " and this
notice must indicate that members of the class may opt out of
the litigation to avoid being bound by its result. Fed. R. Civ.
P. 23(c)(2); see Eisen v. Carlisle & Jacquelin , 417 U.S. 156,
173 (1974). The Supreme Court has declared that the protec-
tions mandated for classes certified under Rule 23(b)(3) are
"an unambiguous requirement of Rule 23" in order "to insure
that the judgment . . . w[ill] bind all class members who did
not request exclusion from the suit." Id. at 176. From the
Court's observation, the majority apparently infers that only
judgments relating to classes certified under Rule 23(b)(3) can
have preclusive effect--at least with respect to claims for
damages. There are two problems with the majority's infer-
ence.
The first problem is that the inference is logically untenable
and manifestly unfounded. Strictly as a matter of logic, the
mere fact that the critical notice and opt-out protections are
mandatory for classes certified under Rule 23(b)(3) does not
mean that the same protections were unavailable to a class
certified under Rule 23(b)(2). Indeed, four years before it
entered judgment in ALPA, the Federal District Court for the
Eastern District of New York had held that protections
entailed by Rule 23(b)(3) certification should be extended to
classes certified under Rule 23(b)(2) when, as in the ALPA lit-
igation, the plaintiffs seek significant monetary as well as
equitable relief. See Gates v. Dalton, 67 F.R.D. 621, 632-33
(E.D.N.Y. 1975) (holding that it was immaterial whether the
plaintiff class was certified under Rule 23(b)(2) or Rule
23(b)(3), because, "in view of the reimbursement claim,
notice to the class and an opportunity to `opt-out' must be
provided in any event. That, as noted, is the only real practical
difference between the two designations . . . ."). We and other
circuits have also recognized that a judgment entered against
a class certified under Rule 23(b)(2) may satisfy the demands
of due process and bind the members of that class as though
it had been certified under Rule 23(b)(3) and lost "a class
action suit for money damages." Crawford v. Honig, 37 F.3d
485, 487 n.2 (9th Cir. 1995) (noting that the case "was a class
action for injunctive relief certified under Fed. R. Civ. P.
23(b)(2), which does not require notice or permit members to
opt out, although a court in its discretion may provide for an
opt-out or notice."); see Fontana v. Elrod , 826 F.2d 729, 732
(7th Cir. 1987) (acknowledging that, "when monetary dam-
ages are sought in a (b)(2) class action, `due process does
require notice before the individual monetary claims of absent
class members may be barred.' "); Johnson v. General Motors
Corp., 598 F.2d 432, 437 (5th Cir. 1979) ("[W]e have previ-
ously suggested that when both monetary and injunctive relief
are sought in an action certified under Rule 23(b)(2), notice
may be mandatory if absent class members are to be bound.").
It is of course true that the members of the plaintiff class
in this case may not have enjoyed adequate protections as
members of the class certified under Rule 23(b)(2) in ALPA,
notwithstanding the fact that the ALPA court could very well
have extended such protections to them.4 The fact that the
plaintiffs might have been deprived of their due process rights
to notice and the opportunity to opt-out, however, cannot bar
the normal preclusive effect of the judgment entered in ALPA.
This is the second problem with the majority's position. We
are not in the habit of presuming violations of due process,
especially when, as here, the parties supposedly suffering
such a violation have never so much as alleged the fact
thereof. See, e.g., Park v. California , 202 F.3d 1146, 1154
(9th Cir. 2000) (rejecting a habeas petitioner's due process
claim because he "failed to fulfill his burden adequately to
allege and demonstrate . . . a violation of due process" despite
having both specified the trial court's error and cited "to the
Fifth, Ninth, and Fourteenth Amendments"); Howlett v. Salish
and Kootenal Tribes of the Flathead Reservation, 529 F.2d
233, 240 (9th Cir. 1976) (noting that the plaintiffs bore the
burden of demonstrating a violation of due process). Hence,
even if it were within the power of this court to establish inde-
pendently that the ALPA court did not require adequate notice
to the members of the plaintiff class in that litigation, the
plaintiffs here cannot benefit from this discovery in light of
their failure to carry the burden of demonstrating (or even
alleging) as much themselves.
C
The majority finally notes that the judgment entered in
ALPA cannot have preclusive effect because the named plain-
tiffs in ALPA settled their claims against United with rein-
statement and an award of back pay rather than appealing the
ALPA court's adverse judgment, thus proving that the named
plaintiffs were insufficiently representative of the absent class
members who had not yet been harmed by the weight policy.5
See supra at 6674-75 ("The class representatives in ALPA
failed to appeal the district court's decision that United's
weight policy did not discriminate on the basis of sex."). The
district court in this case held that the plaintiff class in ALPA
included, as the ALPA court had indicated, all former, present,
and future flight attendants at United and cited our decision
in NAACP v. Los Angeles Unified School District , 750 F.2d
731, 741 (9th Cir. 1984), for the proposition that class actions
may bind even future members of the class. The majority
declares NAACP inapplicable, because "the plaintiffs [in that
case] did not assert that they had been inadequately repre-
sented by the class representatives in the earlier action."
Supra at 6674-75 n.6.
The problem with the majority's handy point is that the
plaintiffs in this case have also failed to assert that they were
inadequately represented. To the extent that the majority
infers the critical allegation from arguments made by the
plaintiffs here, the majority ignores our previous admonition
that "we will not second-guess a prior decision that counsel
adequately represented a class" and our recognition that the
burden is squarely on the plaintiffs to "present facts which
indicate a lack of adequate representation." Brown v. Ticor
Ins. Co., 982 F.2d 386, 390-91 (9th Cir. 1992). The plaintiffs
have simply waived the "inadequate representation " argument
here, and thus it too cannot strip the judgment in ALPA of its
preclusive effect.
D
For the foregoing reasons, I dissent from the majority's
refusal to acknowledge that the ALPA judgment precludes the
plaintiffs' facial attack of United's weight policy as unlawful
sex discrimination under Title VII. I thus believe the majority
errs in reaching the merits of the complex Title VII issue. I
would only note here that the majority's purported grant of
summary judgment for the plaintiffs is unsupportable. It relies
on a "finding"--made for the first time here and on the basis
of figures for the population at large when the plaintiff class
is hardly drawn therefrom--that the evidence establishes that
United's weight program is more burdensome for female
flight attendants than male flight attendants. The majority's
conclusion presses the envelope too far. Cf. Gerdom v. Conti-
nental Airlines, Inc., 692 F.2d 602, 608 (9th Cir. 1982) (Not-
ing that "[t]he general principle is that the plaintiff has the
initial burden of offering evidence which is sufficient to
create an inference of intentional discrimination" and holding
that evidence that a weight limit was applied only to females
was sufficient therefor (emphasis added)).6
II
While I concur in the majority's affirmance of the district
court's summary judgment for United on the plaintiffs' claims
under the Age Discrimination in Employment Act,
("ADEA"), 29 U.S.C. SS 621-634, insofar as those claims rest
on a "disparate treatment" theory, I must dissent from the
court's reversal of the district court's summary judgment
insofar as the plaintiffs' claims rests on a "disparate impact"
theory. Quite simply, the plaintiffs have waived this issue on
appeal by failing to offer any argument whatsoever against
the district court's decision.
There is no room for doubt that the district court granted
summary judgment for United on the plaintiffs' disparate
impact claims because it concluded that such claims are not
cognizable under the ADEA after the Supreme Court's deci-
sion in Hazen Paper Co. v. Biggens, 507 U.S. 604 (1993). In
reversing the district court, the majority contends that we have
"squarely decided" since Hazen was handed down that a dis-
parate impact claim is, in fact, cognizable in an ADEA case.
Supra at 6682. We have "squarely decided" this issue, how-
ever, only in the context of a case that is now a legal nullity.
See Arnett v. California Public Employees Retirement System,
179 F.3d 690, 697 (9th Cir. 1999), vacated, 120 S. Ct. 930
(2000). The majority makes much of the fact that Arnett was
vacated "on other grounds," see supra at 6682 ("The Eleventh
Amendment issue [on the basis of which the Supreme Court
appears to have vacated Arnett] is irrelevant to a case[ ] such
as this one . . . ."), but the majority's distinction does not alter
the fact that Arnett is utterly devoid of legal force. See, e.g.,
O'Connor v. Donaldson, 422 U.S. 563, 577 n.12 (1975) ("Of
necessity our decision vacating the judgment of the Court of
Appeals deprives that court's opinion of precedential effect
. . . ."); United States v. Munsingwear, Inc. , 340 U.S. 36, 39
(1950) (noting that, when a decision is vacated, the path has
been cleared "for future relitigation of the issues"). Indeed,
we have rebuked litigants for attempting to resurrect vacated
decisions on precisely the same logic. See Durning v. Citi-
bank, N.A., 950 F.2d 1419, 1424 n.2 (9th Cir. 1991)
("Although the Authority contends that the decision was
`vacated on other grounds,' we find that contention curious.
A decision may be reversed on other grounds, but a decision
that has been vacated has no precedential authority whatsoev-
er."). I would require more than a citation to our defunct deci-
sion in Arnett before endorsing the conclusion that the district
court erred.
That citation, however, is all there is on the issue. The only
argument offered by the plaintiffs in opposition to the district
court's summary judgment for United on their ADEA claims
has nothing at all to do with the appropriateness of disparate
impact theories and is instead limited to the all-but-conclusory
statement that "the evidence establishes a genuine issue of
intentional age discrimination." In addition to being entirely
beside the point, the plaintiffs' "argument" is wholly insub-
stantial. Even with descriptions of and citations to a few items
in the record to support their characterization of the evidence,
the plaintiffs manage in the course of more than a hundred
pages of briefing to fill less than two with their arguments
relating to the ADEA.7
I think it somewhat curious to hold, solely on the strength
of a perfunctory observation, see supra at 6682 ("We see no
reason to depart from our conclusion in Arnett . . . ."), that the
district court erred in concluding that a disparate impact claim
under the ADEA does not survive Hazen. To do so without
any relevant briefing on the issue is worse yet. Because the
plaintiffs have manifestly waived their ADEA claims on
appeal, I would affirm the district court's summary judgment
for United on those claims.
III
Because I cannot agree with the court's reversal of the sum-
mary judgment for United, I must also disagree with the
reversal of the district court's decertification of the class and
denial of plaintiffs' application for costs.
A
The district court's failure to require notice of the decertifi-
cation under Fed. R. Civ. P. 23(d)(2) was not an abuse of dis-
cretion, because obvious practical considerations militated
strongly against requiring notice here. See Bauman v. United
States District Court, 557 F.2d 650, 658 (9th Cir. 1977)
(reviewing requirement of notice pursuant to Fed. R. Civ. P.
23(d)(2) for an abuse of discretion).
First, United had discontinued its weight program four
years before the decertification of the class. The simple stale-
ness of the class promised to render the typical unnamed
member relatively difficult to locate.
Second, the number of individuals requiring notice would
have been disproportionate to the benefits derived from
notice. This is particularly true because the supposed benefit
from the notice was that members of the class with individual
claims were to be informed that their claims were tolled dur-
ing the pendency of the class action and the claims thus tolled
were exactly those that the court had already disposed of. See
Crown Cork & Seal Co. v. Parker, 462 U.S. 345 (holding
only that claims identical to those advanced in the putative
class action are tolled during the pendency of the class certifi-
cation).
B
I respectfully disagree as well with the court's reversal of
the district court's denial of the plaintiffs' application for
costs, because the fact that the district court properly found
the plaintiffs' claims to be meritless rendered the plaintiffs'
request of an award entirely frivolous. Cf. National Informa-
tion Servs., Inc. v. TRW, Inc., 51 F.3d 1470, 1471 (9th Cir.
1995) (noting that the "loser bears th[e] burden" of overcom-
ing a presumption that costs will be awarded to the prevailing
party in civil litigation under Fed. R. Civ. P. 54(d)).
IV
I would affirm the district court's grant of summary judg-
ment for United on the plaintiffs' Title VII, ADEA, and
FEHA claims. Because the majority declines to do so on the
strength of dubious arguments never made by the plaintiffs
and authority lacking precedential force of any sort, I dissent
from that part of the court's disposition. Moreover, because
the district court correctly granted summary judgment for
United, I dissent from the reversal of the district court's order
decertifying the class and denying the plaintiffs' application
for costs.
It may seem inappropriate in this day and age to have
seemingly arbitrary weight limitations for employees (a prop-
osition with which United seems no longer to disagree), but
our anti-discrimination statutes and law of civil procedure rest
on policies more diverse than the eradication of business prac-
tices that strike us as distasteful or unfair. Those policies
include protecting to the extent practicable the flexibility of
private enterprise to respond to the demands of the market and
protecting individuals from endlessly rehearsing (at poten-
tially crippling expense) their defenses to allegations of
unlawful conduct. In order to vindicate these other policies,
the courts and Congress have drawn lines limiting what con-
duct is actionable and under what circumstances an employer
may be called upon to defend his conduct. Because the major-
ity ignores those lines, many of them well established, I con-
cur in the court's opinion only in part and dissent as to the
remainder.
_______________________________________________________________
FOOTNOTES
1 Although United historically had male flight attendants of Hawaiian
descent on flights to Hawaii, those positions were treated as a separate cat-
egory from other flight attendant positions, and United did not require the
"Hawaiian stewards" to meet weight restrictions. Even after United began
hiring men as flight attendants on non-Hawaiian flights and established
maximum weight requirements for male flight attendants, the Hawaiian
stewards remain exempt from weight requirements.
2 United suspended its weight program for approximately one year from
September 1991 to September 1992. While that suspension may be rele-
vant to damages, it is not relevant to the legal validity of plaintiffs' claims.
3 The district court did not, in most instances, separately address plain-
tiffs' FEHA claims, but the parties acknowledge that those claims rise or
fall with plaintiffs' federal claims.
4 Rather than using the terms "res judicata" and "collateral estoppel," the
Supreme Court has generally used the terms "claim preclusion" and "issue
preclusion." See Migra v. Warren City School Dist. Bd. of Educ., 465 U.S.
75, 77 n.1 (1984). "Claim preclusion" refers to the preclusive effect of a
judgment in foreclosing relitigation of claims that were raised or should
have been raised in earlier litigation, and "issue preclusion" refers to the
preclusive effect of a judgment in foreclosing relitigation of issues that
have been actually and necessarily decided in earlier litigation. See id.
5 After the district court entered its order and judgment in ALPA, counsel
for the plaintiff class wrote to the court "to confirm that . . . neither side
will appeal from any Order, Decision or Judgment heretofore issued by the
Court[.]" A subsequent letter from class counsel stated, inter alia: "United
has agreed to revise its flight attendant weight program, effective February
1, 1980. For the information of the Court, a copy of the new program is
annexed hereto[.]"6 In response to plaintiffs' argument that the class members have
changed over the 20 years since the ALPA decision, the district court notedthat the class certified in ALPA included all future flight attendants and
cited NAACP v. Los Angeles Unified Sch. Dist. , 750 F.2d 731, 741 (9th
Cir. 1984). We stated in NAACP v. Los Angeles that "[a] judgment on
behalf of a class binds all persons belonging to the class and all those who
subsequently come into the class." Id. But in that case the plaintiffs did not
assert that they had been inadequately represented by the class representa-
tives in the earlier action. See id. Concerns about the adequacy of repre-
sentation are heightened where the first action was a class action in which
the plaintiffs in the subsequent action were unnamed, absent members. See
Hiser v. Franklin, 94 F.3d 1287, 1293 (9th Cir. 1996).
7 Named plaintiffs Leslie Frank, Pat Parnell, Carole Kirk, Joan Balla
Weaver, and Donna Durkin had been employed by United for several
years prior to the ALPA decision, but there is no evidence that they bene-
fitted from the ALPA settlement, received notice of the settlement, or had
an opportunity to object to the terms of the settlement.
8 The weight maximums that applied to female flight attendants under
age 34 all fell within MetLife's range for medium-framed women. By con-
trast, the weight maximums that applied to males under age 34 all fell
within MetLife's range for large-framed men. The weight maximums for
female flight attendants between 35 and 44 straddled the medium and
large frame categories for women, while the weight maximums for male
flight attendants between the same ages fell exclusively in the large frame
category for men. Female flight attendants between 45 and 54 were sub-
jected to weight maximums that fell barely into the large frame category
for women. These maximums never exceeded the top of the medium
frame range for women by more than three pounds. Their male counter-
parts the same age were subjected to maximums at the upper end and
beyond the upper end of MetLife's large frame range for men. These max-
imums exceeded the maximum weight for medium frames for men by
anywhere between 4 and 17 pounds; for men 5'11" or taller, the maxi-
mums exceeded MetLife's large frame range for men.
9 Plaintiffs also make a disparate impact challenge to the weight maxi-
mums. Because we hold that plaintiffs are entitled to summary judgment
on their disparate treatment claim, we do not reach the merits of their dis-
parate impact claim.
10 We also reverse the district court's implicit denial of summary judg-
ment on plaintiffs' corresponding discrimination claim under FEHA.
11 United contends that plaintiffs have waived their ADEA class claims
of age discrimination on appeal. We disagree. An appellant ordinarily
must raise an argument in its opening brief on appeal in order to preserve
it for our review. See, e.g.,Officers for Justice v. Civil Serv. Comm'n,979
F.2d 721, 726 (9th Cir. 1992). Plaintiffs have satisfied this standard in sec-
tions VI.C.5.e and VI.D of their opening brief.
12 We also reverse the district court's implicit dismissal of plaintiffs'
corresponding age discrimination claim under FEHA.
1 I shall not separately address the plaintiffs' claims under the California
Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code SS 12900-
12996, but would affirm the district court's judgment thereon for the rea-
sons that follow.
2 The majority suggests that the issue is whether the "post-judgment set-
tlement," as opposed to the actual district court judgment in ALPA, pre-
cludes these claims. See supra at 6674 (rejecting United's argument "to
the degree that [it] seeks to rely on the post-judgment settlement in ALPA"
because the settlement was not incorporated into the district court's judg-
ment and did not protect the interests of absent class members). The post-
judgment settlement is not relevant to the preclusion issue here. It is undis-
puted that the district court tendered a final judgment in ALPA, and it is
the preclusive effect of that judgment that is before us.
3 The plaintiffs take some pains to argue that this lawsuit cannot be
barred by "claim preclusion," as the district court held, as distinct from
"issue preclusion." Even if that were so,"we may affirm the district
court's decision based on any reason finding support in the record," Welch
v. Fritz, 909 F.2d 1330, 1330 (9th Cir. 1990), and it is apparent that "issue
preclusion" would suffice to preclude the present lawsuit. This is so not-
withstanding the plaintiffs' attempt to distinguish the judgment in ALPA
as being limited to a disparate impact theory rather than the disparate treat-
ment theory that is at issue in this case. It is an exercise in fruitless
abstractions to hypothesize that one could recover under a disparate treat-
ment theory relying on evidence of a pattern or practice after failing to
recover under a disparate impact theory. Cf. Watson v. Fort Worth Bank
and Trust, 487 U.S. 977 (1988).
The distinguishing features of the factual issues that typically
dominate in disparate impact cases do not imply that the ultimate
legal issue is different than in cases where disparate treatment
analysis is used. Nor do we think it is appropriate to hold a defen-
dant liable for unintentional discrimination on the basis of less
evidence than is required to prove intentional discrimination.
Rather, the necessary premise of the disparate impact approach is
that some employment practices, adopted without a deliberately
discriminatory motive, may in operation be functionally equiva-
lent to intentional discrimination.
Id. at 987 (citation omitted).
Furthermore, plaintiffs' suggestion that the judgment in ALPA disposed
of only a disparate impact claim and not a disparate treatment claim is
unsupported by anything but a citation to United's statement that "Judge
Pratt conducted what was indisputably a disparate impact analysis." Judge
Pratt may well have recognized that conducting a disparate impact analy-
sis on the type of facial challenge there at issue disposed of any disparate
treatment claim as well. This recognition would explain the plaintiff's
apparent contention in this case that Judge Pratt did not effectively distin-
guish between disparate impact and disparate treatment claims.
4 It bears noting at this juncture that whether these protections were
appropriately extended does not depend on the experience of any particu-
lar member of the class, because the preclusive effect of a class action
depends upon the adequacy of the entire notice scheme and not upon a
determination of whether the member of the class to be precluded actually
received notice. See, e.g., Fontana, 826 F.2d at 732 (" `[A]n absent class
member will be bound by any judgment that is entered if appropriate
notice is given, even though that individual never actually received
notice.' " (quoting 7B C. Wright, A. Miller, & M. Kane, Federal Practice
and Procedure S 1789, at 253 (2d ed. 1986)).
5 The majority also notes that the preclusive effect of the judgment in
ALPA cannot be inferred from the fact that the new weight program was
the result of a settlement between United and the plaintiff class in ALPA.
See supra at 6674 ("Fourth, to the degree that United seeks to rely on the
post-judgment settlement in ALPA, we need only point out that the settle-
ment is not incorporated into a judgment and therefore cannot have preclu-
sive effect."). I see no need to address the validity of the majority's
observation, for it is irrelevant that United's new weight program was the
result of a settlement between the ALPA parties except insofar as it clearly
establishes that the changes in United's weight policy could not possibly
provide a distinct basis for suit (as those changes were merely concessions
sought by the plaintiff class). As the changes to the weight program were
immaterial to a Title VII claim on their face, the fact that they were the
result of a settlement is neither here nor there.
6 As I would affirm the district court's summary judgment on the class
claim under Title VII, I would also affirm the district court's summary
judgment on individual claims.
7 If there were any lingering skepticism that the plaintiffs have aban-
doned their disparate impact claims under the ADEA, both the fact that the
plaintiffs did not take exception in their reply brief to United's statement
to this effect and the fact that the plaintiffs failed to alert us to this court's
purportedly dispositive--and decidedly helpful--decision in Arnett, see
Fed. R. App. P. 28(j), should put such skepticism to rest.