Employers Group Blog Connection

Supreme Court rules in Wal-Mart Sex Discrimination Case

Posted by Nicole Vierzba on Mon, Jun 27, 2011

United States Supreme Court Validates Employers Group Legal Committee Opinion and Hands Wal-Mart a Big Victory

Supporting the opinion of the Amicus Brief filed by Employers Group’s Legal Committee, the high court halts Sex Discrimination suit

Employers Group’s Position Regarding the Dukes v. Wal-Mart Case
The Employers Group Legal Committee filed an amicus brief with the Ninth Circuit Court of Appeal arguing that each employee’s claim of gender discrimination was individualized and, therefore, class certification was not appropriate. The Committee also argued that, given the size of the potential class, the case was not practically suitable for class action status. The multiple discrimination claims against Wal-Mart can not be collective, rather to be handled on a case-by-case basis. The recent United States Supreme Court decision mirrors the opinion held by Employers Group.

The Decision:
Reversing a federal appeals court decision that certified a massive sex discrimination class action against Wal-Mart Stores Inc., the U.S. Supreme Court June 20 ruled that the female plaintiffs failed to satisfy the requirements of Rule 23 of the Federal Rules of Civil Procedure to show common questions of law or fact affecting the class (Wal-Mart Stores Inc. v. Dukes, U.S., No. 10-277, 6/20/11).

Writing for five members of the court, Justice Antonin Scalia said the U.S. Court of Appeals for the Ninth Circuit erred in finding that the plaintiffs, who allege Wal-Mart violates Title VII of the 1964 Civil Rights Act by discriminating against women in pay and promotions nationwide, met the criteria of FRCP Rule 23(a), which requires a showing that the plaintiffs present a common issue of law or fact.

Emphasizing that Rule 23 “does not set forth a mere pleading standard,” Scalia wrote that the plaintiffs failed to show that Wal-Mart's alleged corporate policy of giving local supervisors discretion regarding pay and promotion decisions produced common factual or legal issues best addressed in a class action rather than in individual suits.
“In a company of Wal-Mart's size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction,” Scalia wrote, in an opinion joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito. “Respondents attempt to make that showing by means of statistical and anecdotal evidence, but their evidence falls well short.”

The court also held that the plaintiffs' claims for potentially billions of dollars in back pay relief were improperly certified under FRCP Rule 23(b)(2). Although the court did not foreclose back pay awards in every Rule 23(b)(2) class action, it held that “where, as here, the monetary relief is not incidental to the injunctive or declaratory relief,” the lower courts improperly certified the action under Rule 23(b)(2).
In partial dissent, Justice Ruth Bader Ginsburg said she would hold that the plaintiffs satisfied the requirement to make a preliminary showing of common questions of law or fact under Rule 23(a). Although she agreed that the lower court erred in certifying the class under Rule 23(b)(2), Ginsburg said she would remand for further consideration of whether the plaintiffs could satisfy Rule 23(b)(3), which permits certification if common questions “predominate” over issues affecting individuals and a class action is “superior” to other modes of adjudication.

“Whether the class the plaintiffs describe meets the specific requirements of Rule 23(b)(3) is not before the court, and I would remand that matter for consideration and decision on remand,” Ginsburg wrote. “The court, however, disqualifies the class at the starting gate, holding that the plaintiffs cannot cross the ‘commonality' line set by Rule 23(a)(2). In so ruling, the court improperly imports into the Rule 23(a) determination concerns properly addressed in a Rule 23(b)(3) assessment.”
Justices Stephen Breyer, Sonya Sotomayor, and Elena Kagan joined in Ginsburg's partial dissent.

Employers Group Legal Committee 
The Legal Committee tracks and monitors all employment related cases that impact employers.  The Committee has filed more amicus briefs on behalf of employers than any other entity.  The Committee works diligently to serve Employers Group members and fight for legislation that benefits business as well as defends employers from frivolous lawsuits harming the productivity and progress of business – in California and the rest of the nation.    

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Topics: advocacy, Employers Group, Legal Committee