Brian S. Kabateck
Adapting class actions Putting the Wal-Mart v. Dukes decision in context
In a time when union presence and
utility has all but dwindled, class action lawsuits have prospered, allowing employ- ees to organize and redress corporate vio- lations and mistreatment by management. In fact, according to Nelson Lichtenstein, a labor historian at the University of California, Santa Barbara, “‘[t]he class- action lawsuit was really a substitute for unionism.’” Indeed, Wal-Mart and many companies like it have never been union- ized, leaving class-action lawsuits as one of the only viable methods to promote justice in the workplace. With more than 1.5 million class
plaintiffs, Dukes (Wal-Mart Stores, Inc. v. Dukes, et al. (2011) 131 S.Ct. 2541) is the largest civil rights class action lawsuit in United States history. While the stakes could not have been higher, in analyzing the merits of certification of the class, the Supreme Court ignored 45 years of jurisprudence on the issue. Through its corporate-friendly analysis, the conserva- tive majority effectively raised the thresh- old for class certification, forcing poten- tial class plaintiffs to make evidentiary showings traditionally reserved for later stages of litigation. With this change, the
Court has likely made fact-finding a much larger part of the certification stage, increasing costs and stakes of filing a class-action lawsuit, and obstructing employees’ access to redress. The deci- sion was, as CNN put it, “a powerful, multipronged victory for business.”
Background The plaintiffs in Dukes filed a class
action complaint against Wal-Mart on behalf of more than 1.5 million women who worked at the company since 1998. The plaintiffs alleged that because Wal- Mart allowed local store managers to make decisions on pay and promotion based on their own subjective criteria, that these managers – who were more than likely male – unconsciously favored males over females to receive pay increas- es and promotions. The plaintiffs based their claims upon a statistical study find- ing disparities in pay and promotions between male and female employees. A San Francisco federal judge certified the Dukes class, and in April of 2010, after partly reducing the class, the Ninth Circuit permitted the class to proceed as certified.
There were thus two issues to be
decided upon review by the Supreme Court. The first was whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2), which is ordinarily limited to injunctive or corresponding declaratory relief. The second was whether the class certification ordered under Rule 23(b)(2) was consis- tent with Rule 23(a). In other words, whether plaintiffs’ claims – as evidenced by statistical proof of disparities between men and women, regression analyses showing disparities in pay and promo- tion, anecdotal evidence in the form of affidavits, and expert material on social framework analysis indicating a vulnera- bility to discrimination within the compa- ny’s management structure – were ones that could have been common to all women in the class.
Opinions
The Majority Opinion The Court unanimously held that
claims for monetary relief may not be certified under Rule 23(b)(2), asserting that the claims for backpay were not inci- dental to the requested injunctive or declaratory relief. The court thus held that a class seeking monetary compensa- tion will ordinarily not be able to bring its case under the lenient procedural requirements that the Federal Rules of Civil Procedure afford lawsuits seeking only injunctive or declaratory relief. More importantly, however, Justice
Scalia, joined in the majority by Chief Justice Roberts and Justices Kennedy, Thomas and Alito, established an elevat- ed burden required to establish common- ality, which until this time had been “con- strued permissively.” (See Hanlon v. Chrysler Corp. (9th Cir. Cal. 1998) 150 F.3d 1011, 1019.) According to the
See Adapting, Page 20 18 — The Advocate Magazine JANUARY 2012
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