Wal-Mart Ruling Convolutes Class-Action Landscape

By Pyrillis, Rita | Workforce Management, July 2011 | Go to article overview

Wal-Mart Ruling Convolutes Class-Action Landscape


Pyrillis, Rita, Workforce Management


As employers and employees process the U.S. Supreme Court's June 20 ruling in the Wal-Mart Stores Inc. gender bias case, experts agree that proving systemic workplace discrimination will be much harder.

"It's a big win for employers because it sets new ground rules for the way in which class actions are constructed and defended," says Gerald Maatman, a partner with the Chicago-based law firm Seyfarth Shaw. "The bar has been raised and tightened making it harder for plaintiffs to marshal the evidence needed for a class-action suit. In this case, the plaintiffs failed to establish a pattern or practice of unwritten discrimination."

In a 5-4 ruling in the case of Wal-Mart Stores Inc. v. Betty Dukes, et al., the high court reversed a lower court decision that would have allowed as many as 1.5 million current and former female Wal-Mart workers to sue the nation's biggest private employer for back pay and punitive damages that could have totaled billions of dollars.

The justices ruled that the women did not legally constitute a "class." In order to receive class-action certification, federal rules require that plaintiffs meet certain procedural requirements, says Rob Friedman, a Dallas-based shareholder with the law firm Littler Mendelson. One of those requirements is showing that the plaintiffs share a common legal complaint, according to the Federal Rules of Civil Procedure that govern class-action lawsuits.

Wal-Mart employees' key evidence was the retailer's policy of allowing local supervisors to have discretion over pay and promotion decisions. But that discretion undermines the argument that the company fostered a culture of discrimination, Friedman says. "On the local level, supervisors had great discretion to make employment decisions so it didn't satisfy the commonality test."

Commonality is "a prerequisite to class-action certification," Friedman says, pointing out that "it's more than just a common claim--it's a claim that can be resolved by a common answer."

But the court was divided on that point along ideological and gender lines. The five male and, for the most part, more conservative Supreme Court justices agreed with Justice Antonin Scalia who said in his opinion that "the respondents have identified no 'specific employment practice,' much less one that ties all their 1. …

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