A Year After Dukes, the Impact on Employment Law Still Shaking Out

In June 2011, the U.S. Supreme Court rejected the class action suit filed by 1.5 million female Wal-Mart employees in Wal-Mart v. Dukes. But there's still no clear long-term impact on labor and employment law.

Meghin Delaney
Corporate Counsel
July 24, 2012
Just over a year ago, the U.S. Supreme Court rejected the expansive Title VII class action suit filed on behalf of 1.5 million female Wal-Mart employees in its 5-4 Wal-Mart v. Dukes decision. The Court ruled that the employees failed to prove a common, company-wide practice of discrimination to maintain their class claim. But as the decision reverberates across the country, there’s still not a clear long-term impact of Dukes on U.S. labor and employment law.

One immediate result, says Steven Suflas of Ballard Spahr, was that a lot of employers with other pending class-action suits filed reconsideration motions and, overall, were pretty successful.

In the first three months following the June 2011 decision, more than 90 district courts and a handful of circuit court decisions cited the case, often decertifying previously certified classes in wide range of areas, including product liability, environmental and mass tort cases, according to Snell & Wilmer attorneys M.C. Sungaila, Greg Marshall and Lindsey E. Martínez, writing in The Recorder (a sibling publication of Corporate Counsel).

Suflas, who is a labor and employment partner at Ballard and is the managing partner of the firm’s Cherry Hill, New Jersey office, says that even though employers were successful with reconsideration motions in the immediate aftermath, the Dukes ruling hasn’t eased worries for employers in the long run. “I don’t think that we have seen a tremendous drop off in the volume of class actions,” he says, “but the nature of what’s being filed has changed.”

Michael Burkhardt, a labor and employment partner in Morgan Lewis & Bockius’s Philadelphia office, agrees with Suflas about the number of claims being filed. “Some plaintiff counsel have filed the same types of claims, just dressed up a little bit differently, and there’s been a split of decision around the country about it,” he says.

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