Class Actions
U.S. Supreme Court Makes it More Difficult to Certify Employment Discrimination Claims in Wal-Mart, Inc. v. Dukes
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(San Francisco)—This morning, a deeply divided U.S. Supreme Court in Wal-Mart, Inc. v. Dukes reversed the U.S. Ninth Circuit Court of Appeals’ decision affirming the district court’s certification of a class of female employees at Wal-Mart stores throughout the country.
The class members alleged that Wal-Mart’s policies delegating authority to make subjective and discretionary employment decisions, in an environment infected with gender stereotypes, resulted in widespread discrimination against women in pay, promotions, and other employment practices. The Supreme Court did not reach the merits of the class members’ discrimination claims. Each class member still has the opportunity to pursue her own gender discrimination claims.
The Court was narrowly divided on key issues presented in this case. Five justices rejected the conclusion of the District Court and the Ninth Circuit that the plaintiffs and class members had satisfied the commonality requirement of Rule 23(a)(2) of the Federal Rules of Civil Procedure. Writing for the majority, Justice Scalia heightened the standard for satisfying Rule 23(a)(2)’s commonality requirement, thereby raising the bar for certifying discrimination cases. Led by Justice Ruth Bader Ginsburg, four justices dissented from this notion and asserted that “the practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards” was enough to present a common question under Rule 23(a). Until this decision of the United States Supreme Court in Wal-Mart, Inc. v. Dukes, the commonality requirement of Rule 23(a)(2) had been viewed to be lenient or permissive, since that rule by its language only requires that there be “questions of law or fact common to the class.”
Although the Court was unanimous in ruling that the plaintiffs’ back pay claims should not have been certified under Rule 23(b)(2), four justices, led by Justice Ginsberg, wrote that they might be properly addressed under Rule 23(b)(3). They would have remanded this issue to the lower court, while the other five justices improperly imported Rule 23(b)(3)’s inquiry into Rule 23(a).
The majority’s analysis reaffirmed that employment discrimination class actions are still appropriate in cases involving a biased testing procedure and in cases where there is significant proof that an employer’s uniform policy is discriminatory.
The Supreme Court’s decision was based on an interpretation of the requirements of the Federal Rules of Civil Procedure 23(a)(2) and 23(b)(2). The Supreme Court did not base its decision in the Constitution. As a result, Congress could change the law in this area through legislation if it chooses to do so.
Joan Graff, President of the Legal Aid Society–Employment Law Center, stated, “The Supreme Court’s decision making it more difficult to certify employment discrimination class actions will result in more discrimination in the workplace, unless Congress acts to restore the law to where it was before this decision. Employment discrimination class actions have been very effective in enhancing equal opportunity for women and people of color in our workplaces. We hope that Congress will restore the ability to deter discrimination through the use of the class action procedural device.”