California-Only Class Refiles Sex Discrimination Suit Against Wal-Mart

Workforce Management
By Judy Greenwald
October 28, 2011

Plaintiffs in the Betty Dukes et al. vs. Wal-Mart Stores Inc. sex discrimination litigation refiled the case Thursday in federal court, but this time on behalf of at least 45,000 current and former female employees in California.
The U.S. Supreme Court had ruled against a proposed class of some 1.5 million members nationwide in June. The majority ruled that the "respondents have not identified a common mode of exercising discretion that pervades the entire company."

Full Story: http://www.workforce.com/article/20111028/NEWS01/111029970

Supreme Court trilogy may not be class action trifecta for employers: an examination of Wal-Mart, Concepcion, and Amara

Lexology.com
EpsteinBeckerGreen
David W. Garland, Michael S. Kun, Frank C. Morris, Jr., John Houston Pope and Allen B. Roberts
USA
August 9 2011

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DOL announces OFCCP priority of seeking class relief for equal pay and other violations as response to Dukes v. Wal-Mart

Lexology.com
Seyfarth Shaw LLP Valerie J. Hoffman
and Leslie M. Solondz
USA
July 18 2011

According to Department of Labor Secretary Hilda Solis, the Office of Federal Contract Compliance Programs (OFCCP) will provide a key avenue for victims of employment discrimination seeking class-wide relief, particularly following the United States Supreme Court's decision in Dukes, et al. v. Wal-Mart Stores, Inc. During a speech given at the National Employment Lawyers Association's 22nd Annual Convention in New Orleans, Louisiana, on July 1, Solis spoke about "the big impact with limited resources at the Department of Labor." She stated her belief that OFCCP is "a vital civil rights agency within the federal government," particularly in the wake of the Dukes v. Wal-Mart decision, which many commentators believe made certifying nationwide class actions more difficult. In Dukes, as described in our Management Alert here, the Supreme Court made it more difficult for plaintiffs to satisfy the "commonality" requirement for class certification under Rule 23(a)(2), and also held that claims for backpay and other monetary relief may not be certified under the injunctive or declaratory relief provisions of Rule 23(b)(2), where such monetary damages are not incidental to such relief.

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What is on the horizon for employers after Dukes v. Wal-Mart?

Lexology.com
Orrick Herrington & Sutcliffe LLP
USA
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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Supreme Court's Wal-Mart decision dramatically alters class action landscape

Lexology.com
White & Case LLP
Owen C. Pell, Gregory G. Little and Glenn M. Kurtz
USA
June 24 2011

On June 20, 2011, the Supreme Court issued its decision in Wal-Mart Stores, Inc. v. Dukes, 564 US ___ (2011), a Title VII gender discrimination case against Wal-Mart, the nation’s largest private employer. The issues before the Court concerned the scope of class certification under Rule 23 of the Federal Rules of Civil Procedure. While the Court split over particular issues, it was unanimous in reversing the decision of the Ninth Circuit; it held that the District Court had improperly certified a proposed class of some 1.5 million female employees of Wal-Mart who all claimed gender discrimination.
The unanimous part of the Court’s decision held that most class actions seeking monetary compensation cannot be brought under the portion of Rule 23(b) which was designed for suits seeking injunctive or declaratory relief. This will have a significant impact on employment discrimination cases by precluding the use of Rule 23(b)(3) where plaintiffs seek backpay and other individualized damage claims. In a more far-reaching ruling, the Court also ruled 5-4 that in order for any class to be certified as presenting common questions of law or fact under Rule 23(a), the class claims must depend upon some common contention—the resolution of which is subject to classwide resolution which will resolve an issue central to the validity of one of the class claims. This latter ruling, which will apply to all potential class actions, may make it somewhat more difficult for plaintiffs to obtain broad class treatment of many claims.

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Labor Secretary Speaks about Wal-Mart Decision and OFCCP at NELA Conference

Secretary of Labor Hilda L. Solis

Remarks by Hilda L. Solis, Secretary of Labor National Employment Lawyers Association 22nd Annual New Orleans, Louisiana

July 1, 2011

Thank you, NELA. Good morning. Buenos dias! I'm so happy to be with you here in the great city of New Orleans to talk about our shared mission to fight inequality and discrimination in the American workplace.
Let me start by recognizing a few of the trailblazers here with us today. Judge U.W. Clemon made history as the first African-American federal judge in Alabama. I'm honored to be here with him.
I want to acknowledge Jackie Barrien who is doing extraordinary work as chair of the EEOC. Jackie joined me and Attorney General Holder at the Department of Labor last week for a panel focused on removing employment barriers for the formerly incarcerated. We have more Americans in prison today than at any time in our history. Chairwoman Barrien has been an incredible partner in our effort to give these Americans a second chance to find work and a make a positive contribution to society.
Finally, I want to thank my dear friend Pat Chiu for introducing me. It's a pleasure to have my colleague, mi amiga, and my fellow California girl Pat working by my side at DOL.
When I look around this room today, a Spanish phrase comes to mind: Nos conocemos. We know one another.
Many NELA members are now on my staff, and many of your priorities are my priorities as the Secretary of Labor.
When I interviewed Pat, her incredible work at NELA jumped off her CV. It let me know she was a kindred spirit. Pat played a key leadership role with NELA for so many years. She continues to play that role for me as the head of our Office of Federal Contract Compliance Programs
OFCCP is a civil rights agency in the Labor Department. It requires federal contractors to follow non-discrimination laws. Pat and her staff are leading the way in our efforts to end pay discrimination faced by women o increase the hiring of women and minorities in construction and to improve job opportunities for veterans and people with disabilities.
President Obama likes to say, "We do big things." Under Pat's leadership, OFCCP is doing big things to open the doors of opportunity for nearly one quarter of the American workforce. So thanks for sharing Pat with me, and thanks for inviting both of us to New Orleans for your convention this year.
I know you were here in 2007 to support the city's efforts to rebuild after Hurricane Katrina. I understand you worked with Habitat for Humanity and built five houses in three days, in addition to holding your convention. A lot of lawyers can talk the talk. But NELA: You walk the walk.
Your clients are more than a paycheck to you. They are people in need of help and support. You may be in private practice, but you are doing a public service every morning you go to work. My friends, amigos, you give lawyers a good name.
In many ways, this has been an emotional return to New Orleans for me. The triple blow of Katrina, the recession and last year's devastating oil spill would have brought almost any city to its knees. But not New Orleans.
Here you see a people rebuilding their great city and cleaning up the coast. Here, you see workers fighting to recover lost jobs. Here, you see communities working to regain their economic independence. Here, we are reminded that the American dream can be redeemed over and over again — as long as you're willing to fight for it.
The people of New Orleans give me enormous hope — and you honor them with your presence here today.
A couple of months ago, we marked the one-year anniversary of the Deepwater Horizon oil spoil. Last year, I traveled across the Gulf Coast to meet with many of the people and communities devastated by the largest oil spill in American history.
FEMA had primary jurisdiction. Some folks in Washington even warned me to lay low. The Department of Labor, they said, usually wasn't a major player in a disaster of this type. But when I stood on the beach and saw clumps of toxic black crude wash up on to the shore and endanger workers, I knew they were wrong. When I visited a local church and met with fishermen and shrimpers who were praying for answers after losing their livelihoods, I knew the Labor Department had a major role to play.
I made a commitment to stand by the people of the Gulf Coast to ensure:
that BP protected its workers from health and safety hazards;
that our One Stop Career Centers stood ready to help displaced workers find jobs;
that workers received the pay and the benefits they deserved; and
that BP lived up to its legal obligation to ensure the safety of those working on the cleanup effort.
I'm proud to say that we were on the ground from the very beginning... and we never left.
OSHA conducted more than 4,200 site visits — on land and in boats — to make sure BP and its contractors provided the right kind of safety equipment to cleanup crews. OSHA also required BP to provide safety training to more than 47,000 workers involved in the cleanup effort. We made sure the instructions were provided in languages that all 47,000 cleanup workers could understand.
In addition, my Wage & Hour Division conducted more than 40 investigations related to the oil spill. Since then, we've collected $420,000 in back wages for more than 300 employees who worked on oil spill-related projects.
Later today, I'll be meeting with many of the community leaders and advocates I saw last year. We will assess the continuing needs in this area to hear how we can make workers whole again.
NELA: I know this is our shared concern. I know many of you see yourselves as "private attorneys general." You've dedicated your lives to enforce the legal rights of vulnerable workers.
I want to talk a little bit today about how we're trying to make a big impact with limited resources at the Department of Labor. I know many of you are concerned about the fallout of the Supreme Court's ruling in Walmart v. Duke.
I told you Pat's office is a vital civil rights agency within the federal government. I think that's especially true in the wake of this ruling.
Here's an important point: The Supreme Court's Walmart ruling was limited to class actions under Rule 23 of the Federal Rules of Civil Procedure. But my department's efforts to eliminate workplace discrimination in America don't depend on this rule.
We enforce an executive order that says federal contractors can't discriminate. We have oversight over any company doing at least $10,000 of government business a year. This means that Pat's office can obtain class-wide relief for victims of pay discrimination without having to file a class action lawsuit.
The Walmart decision won't affect our ability to address pay disparities on a broad scale — even if our lawyers have to tweak some of their legal arguments based on the reasoning used in that case.
Here's my bottom line: If you do more than 10K of business with the federal government, my department will enforce civil rights laws on behalf of your workers. This absolutely includes pay discrimination. When DOL seeks a remedy for pay discrimination, we automatically seek back wages for all affected employees at a company. We feel this is an important way to level the playing field for pay disparities affecting women.
Today in America, women are paid on average of 80 cents for every dollar paid to men. For African-American women, it's 70 cents on the dollar. For Latina women, it's 60 cents on the dollar.
This means that each time the average woman starts a new job, she starts from a lower base salary. Over time, that pay gap becomes wider and wider. If you look at what a woman loses in earnings from the start of her career to the end, she stands to lose $380,000 over her lifetime. That means $150 less in her weekly paycheck. It means nearly $8,000 less at the end of the year.
The problem doesn't just affect women. It affects families, too. It's 20 percent less food they can put on the table, 20 percent less that they can spend on their kids' education, 20 percent less to pay the gas bill.
The bottom line: When women start at a disadvantage, they stay at a disadvantage. And we all lose.
So OFCCP is dramatically shifting its enforcement priorities. Last year, 14 percent of their investigations involved compensation cases. This year, that number will go up to between 20 and 40 percent.
Last year, the Paycheck Fairness Act was just two votes short of passing in Congress. The Obama administration remains committed to this legislation.
We need to close loopholes that give employers unjustified defenses to discrimination. We need to strengthen the ban on retaliation against those who complain about unequal pay. We need to rescind the Bush-era guidelines that prevent effective enforcement of equal pay laws.
And we need to create more flexible workplaces so women don't have to choose between motherhood and a fulfilling career. My Wage & Hour division has begun enforcing a new provision in the Affordable Care Act that guarantees break time for nursing mothers. For the first year of a baby's life, employers with at least 50 workers must provide a private location and reasonable break time for nursing mothers.
At the Labor Department, we are also focusing more of our Wage & Hour cases on what we call enterprise-wide enforcement. If an employer is violating the law in one workplace, we think it's likely they're engaging in the same practice in other company locations.
So we're seeking injunctions to ensure that an employer complies with the law across all of its operations. And we're seeking back wages across all of a company's workplaces.
In Ohio, we found overtime violations at a supplier of heating and cooling products, and we obtained back wages for employees at 520 different locations.
In California, we investigated a company that sells biometric equipment to police and government agencies. We obtained back wages for the California workers and company employees in five other states.
One reason we've been so successful is because I hired 350 new wage and hour investigators as Labor Secretary. When I was nominated, I told employers, "There's a new sheriff in town." And I meant it. But I truly believe that most employers want to comply with the law. However, a few bad apples can really spoil the bunch.
We've focused our enforcement efforts on companies that see violating the Fair Labor Standards Act as an acceptable corporate strategy. I'll be blunt: Anyone who views back wages and fines for pay violations as the cost of doing business is going to have big problems with my Department.
These bottom-feeder companies are depressing wages for all American workers. It's immoral and illegal to seek a competitive advantage by paying workers less than the minimum wage. It's immoral and illegal to cheat your workers out of overtime pay.
Protecting the rights of workers has been a passion of mine for over 20 years. I grew up in a home where both of my parents were immigrant union members. They taught me the value of a hard day's work.
My father is of Mexican descent and my mother is Nicaraguan. My father will proudly tell you he was a laborer, a farm worker and a railroad worker. My mother worked at a battery recycling plant and raised seven kids.
Growing up in the La Puente, California, the air was not always fit to breathe. In my zip code, we had one Superfund site, 17 gravel pits, and 5 polluted landfills — including one in the backyard of an elementary school. Nine miles away in area code 90210 — Beverly Hills — there were zero landfills, zero gravel pits, and zero chemical plants. I grew up with a strong understanding that there were "haves" and "have-nots" in this world.
My father was a Teamsters shop steward. I remember sitting at the kitchen table and helping him translate the workers' grievances from Spanish to English. Their pay was meager. The work was dirty. The conditions were unsafe. It wasn't fair. They taught me that injustices in the workplace exist and that workers need a voice on the job.

So, when the President asked me to join his Cabinet and to lead the Labor Department, I wasn't only humbled, I was also honored. I believe in my agency's mission. I believe in improving working conditions, safeguarding workers' rights, and advancing job opportunities for all Americans.
Not many people know that the Department of Labor is the second-largest enforcement agency in the federal government. Only the DOJ is bigger. Under my watch, we've recovered million of dollars in back wages for working men and women all over this country. We've performed a record number of workplace inspections in places where almost 6 million people are employed. I believe we've saved many lives.
These are protections that working people need. They are protections they deserve. And I'm proud to be a part of an administration that is delivering on a promise of justice and equality.
Workers across the country are struggling to get basic employment protections under our laws. During these difficult economic times, every dollar that workers are entitled to is even more crucial.
NELA: I know we care about the same things. So let me close by saying: Thank you for championing what is decent, fair and just. Thank you for using your skill and education to make a difference. Thank you for fighting the good fight.
I'm proud to be here today. Good morning, God bless, and have a wonderful convention

http://www.dol.gov/_sec/media/speeches/20110701_NELA.htm

Wal-Mart: Too Big to Discriminate?

the Root
The Supreme Court's decision struck a blow against class actions by rejecting the concept of modern workplace bias.
By: Sherrilyn A. Ifill Posted: June 22, 2011 at 12:26 AM

Yesterday's U.S. Supreme Court decision in Wal-Mart v. Dukes (pdf) -- the largest employment-discrimination suit ever filed in the United States -- reflects precisely the kind of overreach that makes so many of the decisions by the court's five-member conservative majority sweeping and regressive.
It's not as though experts expected that a majority of the justices would allow the case to proceed as a class action of 1.5 million women, challenging what they contend are the retail giant's discriminatory employment practices.

Full Story: http://www.theroot.com/views/wal-mart-case-too-big-discriminate

Supreme Court blocks massive sex-discrimination suit against Wal-Mart

The Washington Post
By Robert Barnes, Published: June 20

The Supreme Court on Monday blocked the nation’s largest-ever sex discrimination case, ruling in favor of Wal-Mart in a decision that raises significant hurdles for other class-action suits brought against big corporations.

As many as 1.5 million current and former female workers could have been included in the class suing Wal-Mart, the world’s largest private employer, and the company faced the possibility of owing billions of dollars in back pay. But the court’s conservatives said the women had not proved they had suffered from a common policy of discrimination.

Full Story: http://www.washingtonpost.com/politics/supreme-court-blocks-massive-sex-discrimination-suit-against-wal-mart/2011/06/20/AGCQ81cH_story.html?wpisrc=nl_cuzheads

In fight against Wal-Mart, lawyers aren't enough

CNN.com

By Liza Featherstone, Special to CNN
June 20, 2011 5:39 p.m. EDT

(CNN) -- For those of us educated in the wake of Brown vs. Board of Education, it's hard not to endow the Supreme Court with awesome powers to wield on behalf of goodness and light. But Dukes vs. Wal-Mart, the massive sex discrimination suit against the nation's largest private employer, has been a painful lesson in the limitations of the courtroom remedy.
The case was struck down today after 10 years of litigation, as the Court ruled unanimously not to certify Dukes as a class action suit.
Dukes vs. Wal-Mart began in 1996 with the ordeal of Stephanie Odle. A supervisor told Odle, when she was an assistant manager about to become a single mother, that a co-worker made more money because he "supports his wife and his two kids."

Full Story: http://www.cnn.com/2011/OPINION/06/20/featherstone.walmart.lawsuit/index.html

Supreme Court hears oral arguments in largest sex discrimination case in US history

Lexology.com
Edwards Angell Palmer & Dodge
Windy Rosebush Catino and Barbara A. Lee
USA
March 30 2011

Wal-Mart, the largest retailer in the world (with 3,400 stores globally), has been accused of sex discrimination in its promotion and compensation policies by a group of female employees. The case, Dukes v. Wal-Mart Stores, was filed in 2001, and no ruling on the merits of the case have yet occurred. The litigation so far has centered on whether the courts will allow the plaintiffs to pursue the case as a class action. Should the Supreme Court side with the plaintiffs’ class action request, the case will involve between one and 1.5 million plaintiffs, the largest discrimination class action in US history.
Under the Federal Rules of Civil Procedure, plaintiffs who seek class action certification must satisfy four requirements: 1) a sizable number of plaintiffs (not a problem in this case); 2) common questions of law or fact; 3) similar or common claims or defenses by the class representatives; and 4) a representative plaintiff who will adequately protect the interests of all members of the class. The primary issue before the Court is the second prong of the test: whether Wal-Mart’s promotion and compensation policies are sufficiently similar or common across the company to meet the test of “commonality” under the Federal Rule. In order to satisfy this portion of the test, the plaintiffs must identify one or more corporate policies that result in pay and promotion decisions that, in this case, are less favorable to women than to men.

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