Finds Common Issues Of Fact And Law Support Class Action

A federal appellate court recently approved class certification in a sex discrimination suit brought on behalf of approximately 1.5 million current and former female workers employed by Wal-Mart. The majority held that there was sufficient evidence to “support the plaintiffs’ contention that female employees nationwide were subjected to a common pattern and practice of discrimination.” Dukes v. Wal-Mart, Inc., No. 04-16688, Ninth Circuit Court of Appeals (February 6, 2007).

Factual Background

In 2001, six female employees sued Wal-Mart for sex discrimination under Title VII of the Civil Rights Act. According to the suit, women employed by Wal-Mart: 1) are paid less than men in comparable positions, even if they have higher performance ratings and greater seniority; and 2) receive fewer – and wait longer for – promotions to in-store management positions than men.

On April 28, 2003, the plaintiffs filed a motion to certify a nationwide class of women who have been subjected to Wal-Mart’s alleged discriminatory pay and promotion policies. The plaintiffs sought class-wide injunctive and declaratory relief, back pay, and punitive damages. The class would include women employed by Wal-Mart at any time since 1998 in a range of positions – from part-time, entry-level, and hourly employees to salaried managers (which has been estimated to include more than 1.5 million women).

In June of 2004, the federal district court judge assigned to the case issued an order granting in part and denying in part plaintiffs’ request for class certification. With respect to the equal pay claims, the judge granted plaintiffs’ motion as to issues of alleged discrimination and all forms of requested relief. With respect to the promotion claims, the judge certified the proposed class concerning alleged discrimination (including liability for punitive damages as well as injunctive and declaratory relief). However, the judge denied plaintiffs’ request for certification with respect to back pay because evidence relating to the challenged promotions was not available for all class members. Both parties appealed this decision to the Ninth Circuit Court of Appeals.

Legal Analysis

The Ninth Circuit upheld the lower court’s decision, finding that the judge did not abuse his discretion to certify the class. In reaching this conclusion, the court wrote: “Plaintiffs’ expert opinions, factual evidence, statistical evidence, and anecdotal evidence present significant proof of a corporate policy of discrimination and support plaintiffs’ contention that female employees nationwide were subjected to a common pattern and practice of discrimination.” Moreover, the court continued, “[e]vidence of Wal-Mart’s subjective decision-making policy raises an inference of discrimination and provides further evidence of a common practice.”

Practical Impact

According to A. Craig Cleland, a shareholder in the firm’s Atlanta office: “In one sense, the Dukes decision is not surprising. After all, in 2003 the Ninth Circuit upheld a broad multi-state, multi-facility settlement class in the Staton case. A lot about the Dukes decision, however, is remarkable. The class encompasses 1.5 million women employed over five years at some 3,400 stores. And the primary common practice at issue is the employer’s alleged `excessive subjectivity’ in making compensation and promotion decisions. Even reading the decision, it’s hard to understand how this case meets the commonality, typicality and predominance requirements of Rule 23 of the Federal Rules of Civil Procedure.”

Cleland continued: “Fortunately for employers, most circuits have gone in the opposite direction from Dukes. The Anderson case from the Fourth Circuit, the Cooper case from the Eleventh Circuit, the Bacon case from the Sixth Circuit, and the Monreal case from the Tenth Circuit all show that most federal circuits are skeptical of certifying broad classes in employment discrimination cases. While it’s not impossible for plaintiffs to get certification in these cases, the classes certified are usually a lot narrower in terms of geography and job position than the class in Dukes.”

Note: This article was published in the February/March 2007 issue of The Employment Law Authority.

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