Monday, July 18, 2011

What is on the horizon for employers after Dukes v. Wal-Mart?
Orrick Herrington & Sutcliffe LLP
June 23 2011

In a well-reasoned decision that will impact class actions of every stripe, the United States Supreme Court on Monday shut the door to a 1.5 million woman class in Dukes v. Wal-Mart. Plaintiffs sought to certify their Title VII gender discrimination claims by showing that Wal-Mart had a common policy giving local managers discretion in making pay and promotion decisions, and that such discretion was exercised, class-wide, to disproportionately benefit men over women.
In reversing the lower courts’ decisions, the Court stated that “the crux of this case is commonality,” and Plaintiffs failed to meet their burden under Federal Rule of Civil Procedure 23(a)(2). Justice Scalia, writing for Justices Roberts, Kennedy, Thomas, and Alito, explained that plaintiffs were attempting to “sue about literally millions of employment decisions at once.” But he noted that “[w]ithout some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.” Any plaintiff can craft a complaint to raise common questions. But, “[r]eciting these questions is not sufficient to obtain class certification.” Rather, the claims “must depend on a common contention” that can be resolved “in one stroke” and is “capable of classwide resolution.”

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