Constitutional Law

Litigating the Glass Ceiling: Dukes v. Wal-Mart

By Melissa Hart, Associate Professor, University of Colorado Law School.

An en banc panel of the Ninth Circuit recently heard arguments in Dukes v. Wal-Mart, the largest employment law class action in U.S. history, alleging gender discrimination against as many as 1.5 million female employees of the retail giant. The oral arguments came nearly eight years after the case was first filed in 2001, five years after the district court certified the class and four years after the case was first argued to a panel of the Ninth Circuit.

Thus far, both courts to consider the question have decided that the plaintiffs (some of which are pictured below) should be able to pursue their claims against the retail giant as a class. The case raises some of the most central questions in both class litigation and sex discrimination law, and the Ninth Circuit's en banc decision stands poised to contribute significantly in both areas.   

Several of the questions asked at the en banc argument went to the heart of the claims in the case. Though framed in terms of 'commonality' – required of class actions –  the court wondered whether a class of plaintiffs can really challenge a national policy excessively delegating  decision-making authority, or whether such a challenge is really an attack against many individual decisions at stores around the country.

Claims like those made by the Dukes plaintiffs are fundamentally class claims; they challenge the company-wide effects of centralized company policies and practices.

The plaintiffs alleged that women at Wal-Mart stores had been paid less than their male counterparts every year and in every Wal-Mart region. The average gender disparity in annual pay ranged from $14,500 to $1,100. This inequity developed despite the fact that the average women had greater seniority and higher performance ratings than her average male counterpart.

Also, Wal-Mart's female employees were promoted to management so much less often than comparable male employees that two-thirds of hourly employees at Wal-Mart were women but they made up only one-third of managers. Thus, the original Ninth Circuit panel affirmed that the class members are 'united by a complex of company-wide discriminatory policies against women.'

There was no clear signal during questioning as to how the Ninth Circuit will rule on this question of commonality. The answer to this question may substantially define the potential for litigation challenging the 'glass ceiling.'

Another focal point of the en banc arguments was the question of whether the class should have been certified as one seeking injunctive relief, or whether it should have been considered under a more onerous classification scheme.

In cases like Dukes, which are brought to challenge and change company-wide policies that continue to effect female employees, courts should recognize that the injunctive relief is a primary element of the relief sought. With proper attention to due process concerns of absent class members through notice and opt-out procedures, the district court acted appropriately in certifying Dukes as an injunctive class.

Some courts have concluded that the federal rules do not permit certification of employment classes seeking damages because the damages are too individually distinct from plaintiff to plaintiff. Other courts, including the Ninth Circuit, have reasoned that so long as the primary purpose of the plaintiffs' suit is to achieve equitable relief – workplace reform – the inclusion of a request for monetary damages should not defeat certification.

The bulk of the questions asked by the en banc panel circled around this issue. The court queried whether the inclusion of former employees in the class suggested that injunctive relief was not actually what the plaintiffs sought; whether back pay should truly be considered injunctive or whether, in a class this size, it was more appropriately considered monetary; what impact punitive damages should have on certification; and whether it was appropriate in a class seeking injunctive relief for the district court to have ordered notice and an opportunity for individual plaintiffs to opt out of the class.

Interestingly, however, no member of the en banc panel raised the issue of overruling the Circuit's six-year-old conclusion that monetary damages should not be a per se ban to certification under the standard for classes seeking injunctive relief.

The en banc decision could answer these questions and many others. Wal-Mart's attorney, Theodore Boutros of Gibson, Dunn & Crutcher, pushed strongly for remand of the entire case with all of its many questions to the district court. Impact Fund founder and attorney Brad Seligman, representing the plaintiff class, urged the appellate court to take any of a large number of approaches to affirming the three-judge panel's decision.

Whatever happens, this litigation – now in its eighth year – does not look anywhere close to complete. Whether the district court – with Chief Judge Vaughn Walker now replacing retired Judge Martin Jenkins – revisits some of the questions or whether one of the parties petitions for certiorari on an en banc decision affirming the panel, this court is unlikely to have the last word in the dispute.

Full post as published by ACS Blog on April 16, 2009 (boomark / email).