U.S. Supreme Court Strikes Blow To Workers' Rights In Wal-Mart, Inc. v. Dukes
(Washington, DC) - This morning, a deeply divided U.S. Supreme Court in Wal-Mart, Inc. v. Dukes reversed the U.S. Ninth Circuit Court of Appeals' decision to uphold the district court's certification of a class representing approximately 1.5 million female employees at Wal-Mart stores throughout the country. The workers sued the nation's largest private employer for sex discrimination in Wal-Mart's pay, promotions, and other employment practices, alleging that employer policies delegating authority to make subjective and discretionary employment decisions allowed for widespread discrimination against women. It is important to note, however, that the Court's decision was not on the merits of the women's discrimination claims. Each plaintiff will now have to pursue her claim individually, a daunting but not insurmountable task.
The Court was narrowly divided on key issues presented in this case. Five justices sided with Wal-Mart in concluding that the plaintiffs did not produce "significant proof" to satisfy the commonality requirement of Rule 23(a) of the Federal Rules of Civil Procedure, thereby raising the bar for certifying discrimination cases. The majority eviscerates decades of jurisprudence suggesting that highly subjective decision-making systems, such as those at Wal-Mart, are immune from scrutiny in cases involving multiple facilities. The majority also embraces the premise that a written policy forbidding sex discrimination may be enough to immunize employers from accountability for discrimination that can affect personnel decisions. Led by Justice Ruth Bader Ginsburg, four justices dissented from this notion and asserted that "the practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards" was enough to present a common question under Rule 23(a).
Although the Court was unanimous in ruling that the plaintiffs' back pay claims should not have been certified under Rule 23(b)(2), four justices contended that they might be properly addressed under Rule 23(b)(3). They would have remanded this issue to the lower court, while the other five justices improperly imported Rule 23(b)(3)'s inquiry into Rule 23(a).
Patricia A. Barasch, President of the National Employment Lawyers Association (NELA) stated, "This much anticipated Supreme Court decision is a boon to unscrupulous employers to discriminate with impunity against female workers. The fact that the nation's largest private employer passed over these women for claimed promotions, tracked them into lower-wage positions, and paid them less than male employees is bad enough. Worse is that the Court seems to ignore the realities of today's workplace and sends a message to American workers that they will not protect their employment rights. Today's judgment will make discrimination more prevalent unless Congress acts to reverse yet another misguided opinion by the Court."
Article from NELA
Eric M. Gutiérrez, Legislative & Public Policy Director
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The National Employment Lawyers Association advances employee rights and serves lawyers who advocate for equality and justice in the American workplace. NELA provides assistance and support to lawyers in protecting the rights of employees against the greater resources of their employers and the defense bar. It is the country's largest professional organization exclusively comprised of lawyers who represent individual employees in cases involving employment discrimination and other employment-related matters. NELA and its 68 state and local affiliates have more than 3,000 members around the country.