Tuesday, June 21, 2011

The 7 key points for employers from the Supreme Court’s Wal-Mart v. Dukes opinion


Yesterday, the Supreme Court unanimously reversed the certification of the class action in Wal-Mart Stores, Inc. v. Dukes. Recall that Dukes sought the certification of a nationwide class of 1.5 million female Wal-Mart employees allegedly denied pay and promotions because of a corporate-wide “policy” of sex discrimination. The reversal was expected; the unanimity of the result (albeit not of the reasoning), however, was not.

The majority grounded its decision on the lack of commonality among the potential class members. Here are the seven key takeaways from the Court’s opinion:

   1. Commonality requires more than an alleged common violation of the same law:

“Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor.” [p. 9]

   2. Class certification often requires some analysis of the merits of the underlying claims:

“Here respondents wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.” [pp. 11-12]

   3. When a company has an announced policy against discrimination, and the alleged discrimination consists of management’s deviation from that policy, it is difficult, if not nearly impossible, to find commonality among those individual decisions:

“[L]eft to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all. Others may choose to reward various attributes that produce disparate impact—such as scores on general aptitude tests or educational achievements…. And still other managers may be guilty of intentional discrimination that produces a sex based disparity. In such a company, demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s. A party seeking to certify a nationwide class will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions.” [p. 15]

   4. The larger the proposed class, the more difficult it is to establish a practice common to the class:

“In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction.” [pp. 15-16]

   5. General statistical evidence is insufficient to establish commonality, without something extra to tie those stats to an issue common to the class:

“Other than the bare existence of delegated discretion, respondents have identified no ‘specific employment practice’—much less one that ties all their 1.5 million claims together. Merely showing that Wal-Mart’s policy of discretion has produced an overall sex-based disparity does not suffice.” [pp. 17-18]

   6. Anecdotal evidence also must tie narrowly to a common issue:

“Respondents filed some 120 affidavits reporting experiences of discrimination—about 1 for every 12,500 class members—relating to only some 235 out of Wal-Mart’s 3,400 stores…. Even if every single one of these accounts is true, that would not demonstrate that the entire company ‘operate[s] under a general policy of discrimination,’ … which is what respondents must show to certify a companywide class.” [p. 18] “A discrimination claimant is free to supply as few anecdotes as he wishes. But when the claim is that a company operates under a general policy of discrimination, a few anecdotes selected from literally millions of employment decisions prove nothing at all.” [p. 18, fn. 9]

   7. Class action damages that must be individually litigated (such as backpay) cannot be litigated in a class action that seeks injunctive relief as its unifying point across the class:

“When the plaintiff seeks individual relief such as reinstatement or backpay after establishing a pattern or practice of discrimination, ‘a district court must usually conduct additional proceedings … to determine the scope of individual relief.’ … At this phase, the burden of proof will shift to the company, but it will have the right to raise any individual affirmative defenses it may have…. The Court of Appeals believed that it was possible to replace such proceedings with Trial by Formula…. [A] class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims.”

What does all this mean for businesses? It means that class actions alleging employment law violations must be narrowly tied to a specific policy or practice. It means that the best defense against a class action might be a policy directing decision-makers to follow the law. It means that class actions in cases alleging intentional discrimination just became a lot more difficult to establish, and that going forward we will see many more certified classes in disparate impact cases than in disparate treatment cases.

Most importantly, it is not the “unmitigated disaster for historically oppressed employees seeking large-scale workplace justice against their employers,” as argued by Professor Paul Secunda on the Workplace Prof Blog. Instead, I agree with Walter Olson, writing at Cato at Liberty who summed it up best:

To sweep hundreds of thousands of workers (or consumers or investors) into a class as plaintiffs even if they personally have suffered no harm whatsoever— to use sexism at Arizona stores to generate back pay awards in Vermont, and statistical disparities to prove bias without allowing defendants to introduce evidence that a given worker’s treatment was fair—bends the class action mechanism beyond its proper capacity. Also to the point, it is unfair.

Dukes means that corporate America can exhale a huge sigh of relief—a Court that has been surprisingly employee-friendly saved its biggest decision to flex its pro-business muscles.

The Wal-Mart Stores, Inc. v. Dukes opinion is available for download as a pdf form the Supreme Court’s website.


Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact the author, Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

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