Is It The End Of Class Actions In Employment Discrimination Cases?

Nicholas Fortuna, September 30, 2013.

The barricade erected by the Supreme Court in 2011, when it threw out a class action sex discrimination lawsuit brought by female employees against Wal-Mart, is proving to be impenetrable. In August a U.S. District Court Judge in California, relying on the Supreme Court’s earlier decision, denied a motion for class certification for women working in Wal-Mart’s California offices. The women are claiming that they were underpaid and given fewer promotions compared to their male counterparts. The case filed against Wal-Mart was a reformulated lawsuit of the one the Supreme Court considered in 2011. The California suit was part of a broader strategy by Wal-Mart’s female employees to bring more narrowly tailored class actions to avoid the pitfalls of the earlier action.

The Supreme Court, in a split decision (5-4), shut down a class action lawsuit against Wal-Mart that could have affected as many as one million women. Each of those women, it appears, will have to file their own claim. Only workers who have a truly common legal claim may sue as a group. The Court’s majority stated that rigorous proof will be required showing every single worker suffered from exactly the same sort of bias. Sample statistics and anecdotes won’t do. The claim brought by female employees, according to the majority, is that Wal-Mart’s “corporate culture” institutionalized a bias. They are suing, the opinion said, “about literally millions of employment decisions at once.” The ruling was, in essence, an interpretation of Rule 23, a federal court rule governing class actions.

Rule 23 requires that the individual members of a class have a common legal claim. Rule 23’s commonality requirement has now appears to have migrated to mean that the claims must be more or less identical. Further, proving commonality has become more difficult because each class member must provide proof that she has a common legal claim.

The 2013 California case alleged specific discriminatory statements made by the district and regional managers instead of relying on nationwide statistical patterns and anecdotal evidence. U.S. District Court Judge Charles Brayer stated in his decision that the women could not bring their allegations as a class because they had not established that their claims regarding Wal-Mart’s employment practices were linked to a class-wide policy. Judge Brayer ordered the claims to proceed on an individual basis.

We anticipate an increase in decisions limiting the ability to bring employment discrimination class action cases. For large companies in general, the more varied and decentralized their job practices, the less likely a class action claim filed against them will survive.


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