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threshold for class-action plaintiffs, not just those proceeding under Rule 23(b)(3). As an example of the type of claim which might today be denied certi- fication, the Dissent cites to an earlier case involving African American truck drivers who sought and obtained injunc- tive relief under Rule 23(b)(2) despite differences in “qualification and per- formance” among the class members. As Lyle Denniston of SCOTUSblog
put it, “[f]or large companies in general, the ruling in Dukes offered [the message that] the bigger the company, the more varied and decentralized its job practices, the less likely it will have to face a class- action claim.” Additionally, because the majority rejected the Dukes plaintiffs’ attempt to establish discrimination through statistical evidence that the dis- parities in pay and promotion across all of Wal-Mart’s 41 regions “can only be explained by gender discrimination,” the Court’s holding has the potential to inval- idate disparate-impact cases in which the allegations suggest that subjective deci- sion-making led, over time, to company- wide disparities in the workforce. Some cases have even broadened the
application of Dukes to other areas of the law. For example, in Cruz v. Dollar Tree Stores (N.D. Cal. 2011) Ca. No. 07-2050 SC, the plaintiffs, a group of current or former store managers for the company’s California store, brought a putative class alleging that due to a misclassification as exempt employees, they were owed com- pensation. Ultimately, the Ninth Circuit decertified the class. In responding to the Dukes decision, the Ninth Circuit described the holding as providing “a forceful affirmation of a class action plaintiff ’s obligation to produce common proof of class-wide liability in order to justify class certification.” The court interpreted this requirement as one of “common proof to serve as the ‘glue’ that would allow a class-wide determination of how class members spent their time on a weekly basis.” Heidi Li Feldman, a professor at
Georgetown Law Center, said similar rea- soning might make it tougher for plain- tiffs to bring a class action against a
mortgage lender accusing it of having a nationwide policy of defrauding borrow- ers. She stated that a “big mortgage bro- ker might . . . have policies [that] abide by all of the rules and regulations that are applicable, [while] delegate[ing] a lot of discretion to [its] branches.”
Impact on employees and consumers Marcia D. Greenberger, co-president
of the National Women’s Law Center stated that the Supreme Court decision “strikes a blow to those who face discrim- ination in the workplace to be able to join together and hold companies, espe- cially large companies, accountable for the full range of discrimination they may be responsible for.” Elizabeth B. Wydra of the Huffington Post asks: “Should [the Dukes plaintiffs] be penalized simply because Wal-Mart is a massive company and its corporate practices occur on a massive scale?” Ken Jacobs, the chair of the Labor Center at University of California-Berkeley articulates his con- cern: “Basically if you’re saying that the overall corporation is off the hook for what local managers are doing, that removes the incentive for corporate headquarters to really pay attention and to set up structures to make sure you do have the law being followed.” In cases for national employers (i.e.,
cases against Costco, Bayer, Goldman Sachs, Toshiba, and Cigna), the progno- sis is not great. (See Costco Women’s Suit May be Imperiled by Supreme Court’s Wal-Mart Decision, Margaret Cronin Fisk and Karen Gullo, http://
www.bloomberg.com/news/2011-06-23/ costco-women-s-suit-may-be-imperiled- by-supreme-court-s-wal-mart-decision. html) (“‘Bottom line: Under Dukes, a class cannot be certified for this case as framed.’”) Thus, if a defendant can show that each individual store has its own dis- tinct policies – which may nevertheless amount to discrimination – short of a general company-wide policy clearly articulating discrimination, in light of Dukes, the company will likely not be held liable.
Ultimately, the Dukes decision will limit employees’ access to justice. Most of
the women in the Dukes class action would never have brought nor will they bring an individual lawsuit for discrimi- nation. And in any event, winning an individual discriminatory action is very difficult. (See St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502 (holding that the employer does not have to prove that there was a good reason for its decision; it needs only to claim that there was one.)) Even if these individuals claimants did have viable claims, the damages available would likely make bringing the suit worthless for most attorneys. If these large civil rights class actions cannot push through the courts, then the only remaining entity able to sue for compa- ny-wide patterns of discrimination may be the government.
Limitations of the Dukes decision
Factually Distinguishing Dukes Courts across the nation are using
Dukes as a distinguishing case, bolstering many employees’ class claims. (See, e.g., Tyco Electronics) (holding, just days after Dukes that a class lawsuit filed by 600 employees for underpayment was valid); (Starbucks (FL) (same); (C.R. England Inc.) (CA) (same for 1,000 plaintiffs); (HCR Manor Care) (motion to decertify denied.) The key for these employees seeking to distinguish their case from Dukes was to lay out reasons why their cases factually dif- fered from Dukes and should be awarded class action status despite the holding. For instance, Wal-Mart’s victory in its case is at least to some extent attributable to the fact that alleged sex discrimination victims were located all across the country, had dif- ferent managers, worked in different regions, and reported diverse damages. Pursue Class Actions at the Local Level To this same effect, “Joseph Sellers,
one of the top lawyers for the plaintiffs in Dukes, said that as a result of the ruling, there would be more class actions at the store or regional level, where it might not be hard to show that local managers had engaged in sex or age discrimination.” (New York Times, Wal-Mart Case Is a Blow for Big Cases and Their Lawyers, http://
www.nytimes.com/2011/06/21/business/ 21class.html?_r=2&pagewatned=all)
JANUARY 2012 The Advocate Magazine — 23
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