Yesterday, the nation’s largest private employer asked the Supreme Court to review the class certification of the nation’s largest employment discrimination lawsuit. The case—Dukes v. Wal-Mart—is remarkable for several reasons:
- It has been pending for nine years, and yet the parties are still dealing with the preliminary procedural issue of whether this case will proceed as a class action.
- The plaintiffs seek a nationwide class, to include every woman employed by Wal-Mart for the past decade, in any of Wal-Mart’s 3,400 separately managed stores, across 41 regions and 400 districts, in any of 53 departments and 170 different job classifications. In other words, there is not much similar about these women other then the fact that they all worked for Wal-Mart.
- The potential class is more than 1.5 million women.
- The potential damages are billions.
Steven Greenhouse, at the New York Times, frames the dispute on the class certification issue:
Mr. Boutrous [one of Wal-Mart’s lawyers] said that even if the seven lead plaintiffs had suffered discrimination, that did not mean there was across-the-board bias at thousands of stores nationwide. He said the women’s claims should be tried individually, or if a manager discriminated against a store’s 200 women employees, then perhaps as a 200-member class action for those women.
Joseph Sellers, a lawyer for the plaintiffs, said the case should be a class action because Wal-Mart had and still has a common set of personnel policies at all of its stores. “We regard them as cookie-cutter operations that are similar to each other,” he said.
Wal-Mart—which strongly disputes liability and describes itself as “a leader in fostering the advancement and success of women in the workplace”—has asked the Supreme Court to review the propriety of a class action seeking money damages under the class action provision for injunctive or declaratory relief. The New York Times has available for download a PDF of Wal-Mart’s brief.
There is a lot at stake for businesses in the Supreme Court’s decision of whether to accept review of this class certification. A refusal by the Supreme Court to hear this case, or, worse yet, an affirming of the class by the Court, would greatly increase the risk for employers defending employment decisions (and resulting class actions) that involve disparate groups of employees, reporting to different managers, and working in different facilities. It would result in larger classes with a higher potential for recovery, neither of which is good for companies. It’s safe to say that the class action epidemic in this country would get a whole lot worse.
I am certain I will be one of many blogger commenting today on this case. For a snapshot of what some others have already said, take a look at the following:
- Dukes v. Wal-Mart certiorari petition – from Ted Frank at PointOfLaw Forum
- Dukes v. Wal-Mart Cert. Petition – from Workplace Prof Blog
- Wal-Mart appeals in job bias case – from SCOTUSblog
Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.