Labor & Employment Law

Fatal inconsistency in Wal-Mart Stores v. Dukes?

At oral arguments this morning [read the transcript] in Wal-Mart Stores v. Dukes some of the Justices revealed a potentially fatal flaw in the employees' argument.

The case involves questions about whether a huge Title VII sex discrimination class action can go forward as a class action rather than as a series of individual cases.

The employees are arguing that a nationwide class is proper because there is a centralized corporate employment policy. At the same time the employees complain that individual store managers have too much discretion in making employment decisions.

Justice Kennedy said to the employees' lawyer:

. . . your complaint faces in two directions. Number one, you said this is a culture where Arkansas knows, the headquarters knows, everything that's going on. Then in the next breath, you say, well, now these supervisors have too much discretion. It seems to me there's an inconsistency there, and I'm just not sure what the unlawful policy is.

Justice Skalia followed this with:

I'm getting whipsawed here. On the one hand, you say the problem is that they were utterly subjective, and on the other hand you say there is a -- a strong corporate culture that guides all of this. Well, which is it? It's either the individual supervisors are left on their own, or else there is a strong corporate culture that tells them what to do.

My view:

I think the Court should allow trial courts to exercise a wide swath of discretion (in either direction) on certifying a class action.

But the employees in this case really have got themselves in a contradictory position.

I'm expecting a 5-4 or 6-3 decision in favor of Wal-Mart. And I'm being foolish predicting anything the Supreme Court might do.

Full post as published by Ross' Employment Law Blog on March 29, 2011 (boomark / email).