Labor & Employment Law

Wal-Mart Stores v. Dukes: Will SCOTUS grant certiorari?

On Friday, December 3 the US Supreme Court will have a private conference. One big case under consideration for granting certiorari is Wal-Mart Stores v. Dukes.
[Details; Briefs]

We'll know on Monday what the Court does on Friday.

Background:

Dukes and others sued claiming sex discrimination as to pay and managerial promotions in violation of Title VII. The trial court certified a class of all women employed at any Wal-Mart domestic retail store at any time since December 26, 1998 who have been or may be subjected to Wal-Mart's challenged pay and management track promotions policies and practices. The class concerns approximately 1.5 million women who worked at any of Wal-Mart's 3,400 stores, including part-time, full-time, entry-level, hourly, salaried, managerial. The 9th Circuit (en banc) affirmed in large part (6-5) and reversed in part, using a highly deferential "abuse of discretion" standard of review.

The court upheld certification as to plaintiffs who were still employed when the complaint was filed, as to claims for injunctive and declaratory relief and back pay. However, the court remanded with respect to claims for punitive damages, so that the district court may consider whether to certify the class under Rule 23(b)(2) or (b)(3). The court also remanded with respect to the claims of putative class members who no longer worked for Wal-Mart when the complaint was filed so that the district court may consider whether to certify an additional class or classes under Rule 23(b)(3).

The class was certified under Rule 23(a) and (b)(2). There was no dispute as to the numerosity requirement. As to common questions of fact and law, the court found that there was significant evidence of centralized corporate-wide practices and policies of excessive subjectivity in personnel decisions and sexual stereotyping, statistical evidence of gender disparities, and anecdotal evidence of gender bias. This raised a common question of whether there was discrimination based on "a single set of corporate policies." The court found the claims to be typical even though the only class representative for managers holds a low level position.

Five DISSENTING judges argued that class certification is improper because the named plaintiffs do not have "significant proof" of a Wal-Mart policy or practice "that would make it possible to conclude that 1.5 million members of the proposed class suffered similar discrimination." They said that "the evidence does not come close to meeting the [General Telephone Co of the Southwest v. Falcon, 457 US 147 (1982)] requirements for demonstrating commonality and typicality."

Questions Presented in the petition for certiorari:

I. Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)?which by its terms is limited to injunctive or corresponding declaratory relief?and, if so, under what circumstances.

II. Whether the certification order conforms to the requirements of Title VII, the Due Process Clause, the Seventh Amendment, the Rules Enabling Act, and Federal Rule of Civil Procedure 23.

My view: This is one of the hottest employment law cases around, simply because the number of people in the class is approximately 1.5 million and it involves 3,400 stores. The Supreme Court looked at this case in an earlier conference, and it seems there is some difficulty making the initial decision as to whether to hear it. Odds are the Court will grant certiorari because this is the largest (by far) class action ever, and it's not clear that the lower courts handled it correctly. (I'm not saying the lower courts were wrong, only that it's not clear.)

Full post as published by Ross' Employment Law Blog on December 01, 2010 (boomark / email).