Mark Twain had a famous line about how reports of his death were greatly exaggerated. They were exaggerated because he was still alive.
In a way, a similar phenomenon is playing out in employee class action lawsuits. In June 2011, the U.S. Supreme Court issued its decision in Wal-Mart v. Betty Dukes, et al, a class-action employment lawsuit against the retail giant Wal-Mart. By a 5 to 4 vote, the Court ruled that a proposed class of up to 1.6 million women who may have suffered gender bias while working at Wal-Mart was too large.
After the ruling, some pro-employer pundits were quick to claim that the Dukes case sounded the death knell for the class action. But like reports of Mark Twain's death, those claims are greatly exaggerated. The class action lawsuit is actually alive and well, even if the Supreme Court ruling does impose certain limits on the size of the group.
Dukes Holding
In Wal-Mart v. Dukes, the Supreme Court addressed the issue of what a group of plaintiffs needs to show in order to get certification as a class for a class action lawsuit. Legal analysts suggest that the Court's decision in Dukes is having an effect on other California employment law class action suits. Additionally, the suit has had an impact on how Wal-Mart operates. Wal-Mart has taken some steps seeking prevent future litigation and repair its image as a company that is unfriendly to female workers.
The plaintiffs in Dukes were alleging that Wal-Mart discriminated against women in hiring and promotions. The suit sought to have all female Wal-Mart employees from December 1998 to the present certified as a class - over 1.5 million people. The lower court granted certification and Wal-Mart challenged it.
The Supreme Court ruled that the lower court erred in certifying the class. The Court found a lack of evidence that the plaintiffs had enough in common to proceed as a class, given the company's stated policy of giving store managers great independence in hiring and promoting employees. The reasons that females did not get promotions would vary from store to store, the Court reasoned.
But the Court did not absolve Wal-Mart stores of gender discrimination against female employees. It only said that all the female employees could not bring suit as one class. Many of those female employees are still going forward to challenge discrimination by Wal-Mart. Their cases been broken up into several different class actions.
In California, several of these cases were filed in October 2011. Plaintiffs' lawyers described the suits as an "armada" of class-action. So instead of one aircraft carrier of a case against Wal-Mart, there is now a series of smaller ships challenging the mammoth retailer's treatment of its women employees.
Dukes Cited in Claim Against Costco
Other courts are also applying the Dukes decision in different types of employment class action suits. For example, in September 2011 the Ninth U.S. Circuit Court of Appeals in San Francisco reversed the lower court's certification of a class in Shirley "Rae" Ellis et al. vs. Costco Wholesale Corp.
The plaintiffs in Ellis alleged that Costco discriminated against women in its promotional decisions. The Court of Appeals cited Dukes a number of times in its opinion, holding that the lower court erred in its analysis of the "commonality" and "typicality" requirements for certifying a class.
Similar to the employees in the Dukes suit, the employees in the Ellis suit will have to bring their discrimination claims individually or in smaller groups. But again, this does not mean that their claims are dead.
Wal-Mart's Response
In an effort to remove some of the taint from the Dukes suit, Wal-Mart has created programs to help improve the position of women in its stores and around the world. The retailer vowed to use more female contractors to construct its stores and purchase more products to sell in its stores from factories and farms owned by women.
Critics of Wal-Mart say that the company's attempts are too little, too late, and that Wal-Mart's decades of mistreatment of female employees and keeping women in sweatshops around the world by purchasing things from factories overseas cannot be erased by a few goodwill gestures.
The Dukes case did not mark the demise of the class-action employment lawsuit. If believe your employer has violated your workplace rights, contact an experienced attorney who can discuss your situation with you and advise you of all of your options, including participation in a potential class action.
