Archive for June, 2011

How Does Dukes v. Wal-Mart Effect Your Current Employment Practices?

We know that Dukes v. Wal-Mart was a 5-4 decision hailed as a major victory for “big business” in the field of employment practices. In this “major victory”, the United States Supreme Court determined that three female plaintiffs could not sue the nation’s largest employer, Wal-Mart, on behalf of 1.5 million other women in a class action lawsuit for sex discrimination. But what did ruling do for medium and small businesses… and what did it really do for “big business”. Ultimately, to answer this question, we must understand the ruling issued in the Dukes and the what the lawyers argued. In the end, it probably will not change how the average business owner’s employment practices. In fact, it probably will not change Wal-Mart’s employment practices.

Interestingly, Dukes is not an employment law case. The question posed in Dukes was whether or not the plaintiffs properly represented a class of similarly situated people, which would qualify them for class action status. Generally speaking in order to qualify for a class status in a federal lawsuit, the party seeking certification must demonstrate: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. A key factor in the Court’s decision was that the plaintiffs, did not allege that Wal-Mart has any express corporate policy against the advancement of women. Rather, they claimed that their local managers’ discretion over pay and promotions is exercised disproportionately in favor of men, leading to an unlawful disparate impact on female employees. Consequently, the plaintiffs’ theory lead the court to believe that there were different questions as to law or fact to the members of the class.

Justice Scalia, writing on behalf of the majority, summed up the opinion of the court by stating that the members of the class “held a multitude of different jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed. . . . Some thrived while others did poorly. They have little in common but their sex and this lawsuit.”

As you can see the Court’s decertification of the class does not indicate a judgment on the legitimacy of the women’s claims, nor provide comment on the employment practices of Wal-Mart. Rather, the court merely invalidates a “class” on the grounds that lacked the necessary similarities. As a result, Wal-Mart will likely see a multitude of new lawsuits brought by the individual class members as well as the individual plaintiffs.

So, back to the question… How will the ruling in Dukes effect employment practices? After review of the case, the question is phrased wrong. The question should be how will Dukes effect employment litigation. Frankly, the answer may lead to more lawsuits, as individual plaintiffs will need to bring their own separate lawsuit rather than be part of a class in a class action suit. I am not sure that is what the Court intended.

You can read more about the lawsuit here.

To read more about Radoslovich | Krogh’s Employment Law practice, click here.

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