by David Morgan and Eileen Curtayne, Ph.D., DCI Consulting Group

DCI staff visited the U.S Supreme Court (USSC) on Tuesday, March 29, 2011. At approximately 5:40 a.m., there were already well over 90 people in line hoping for a ticket to hear the oral argument for Dukes v. Wal-Mart. The facts surrounding the case began in 2001 when Betty Dukes, a Wal-Mart cashier, filed a claim of discrimination based on sex. Dukes claimed that her promotional opportunities were limited and that she was paid less than her male counterparts because of her sex. Additional female employees offered statements similar to the allegations of Dukes, leading to the plaintiffs’ argument that Wal-Mart’s corporate culture contributed to discrimination against women in pay and promotion.

Wal-Mart argues that employees who hold different jobs in different stores, under the supervision of different managers do not share sufficient commonality to be resolved on a collective basis. It is important to note that the particular merits of the case are not under question; rather, the USSC must determine whether or not to allow class certification potentially covering over 1.5 million female workers—the largest in U.S. history—who were employed by Wal-Mart at any point since December 1998.

According to the Petitioner's Brief, Wal-Mart’s company-wide policy “expressly bars discrimination based on sex (p. 3).” In addition, the Brief states that, “The class members—potentially millions of women supervised by tens of thousands of different managers and employed in thousands of different stores throughout the country—assert highly individualized, fact-intensive claims for monetary relief that are subject to individualized statutory defenses (p.1).” Wal-Mart contends that the Ninth Circuit en banc ruling discussed in a previous post, which certified the class “…cannot be reconciled with the requirements of Rule 23(b)(2)…” as plaintiffs “…seek to evade the additional procedures required for fair adjudication of monetary claims, including notice and opt-out rights for absent class members (p. 1).”

According to the Respondent's Brief the plaintiffs contend they have met the standard for commonality in establishing a class as outlined by Rule 23 and Title VII. In particular, the certification standard for a class in discrimination cases addressing subjective selection systems in employment is “whether there are questions of law or fact common to the class” (p. 23). The plaintiffs contend the standards for commonality outlined by Wal-Mart far exceed what has been supported in case law and if adopted would ultimately be detrimental to parties seeking legal remedy in employment discrimination cases.

There may be far-reaching implications of the Supreme Court’s final ruling in this case. Large organizations, particularly those with many local nation-wide establishments, may be affected. A favorable ruling for Wal-Mart may translate into greater emphasis on local accountability in the eyes of the courts, depending on the circumstances. In addition, a favorable ruling for Wal-Mart may yield more restrictive standards for class certification and thereby limit who can file a systemic employment discrimination case.

A favorable ruling for the plaintiffs may mean larger classes of potential victims when systemic discrimination is alleged, but may also signal a need for greater accountability amongst corporate entities when using subjective personnel systems, and encourage proactive measures when formulating principled personnel systems.

Notably in this case, the final ruling will provide insight into whether or not the Ninth Circuit’s class certification was consistent with Rule 23(a) (i.e., commonality, typicality, and adequacy); and whether or not claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)(i.e., the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole) and, if so, under what circumstances. Although the final ruling is not expected for some time, an audio feed of yesterday’s argument is expected to be uploaded on the USSC’s Argument Audio webpage very soon. The written transcript is also available on the Arguments Transcripts webpage.

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