Tuesday, June 21, 2011

Wal-Mart v. Dukes: Supreme Court Raises the Bar on Employment Discrimination Cases

There's a civil procedure in the law that you have probably heard before on TV called a "Class Action."  To the lawyers who practice in federal courts, it's known as Rule 23 of the Federal Rules of Civil Procedure.  The entire purpose of Rule 23 is efficiency.  A long time ago, the Judiciary and Congress figured out that if 100 people had a complaint about the same issue with the same defendant, then it just made sense to allow all 100 people to join in on the same law suit instead of having 100 separate law suits before 100 different judges wasting tax payer dollars in 100 different cases that could have been combined into 1 single case.  Having 100 different cases about the same thing would obviously be inefficient.  Combining all of those cases into just 1 case is, of course, a more efficient use of the court's time and of tax payer dollars.

That's the basic principle behind Rule 23.

And because the recognized goal is efficiency, the criteria that plaintiffs must meet in order to qualify as a Class Action case under Rule 23 is a pretty low bar.  In a nutshell, the plaintiffs merely need to have a lot in common in terms of (i) what they are suing about and (ii) who they are suing.  If those things match, then congratulations - you can bring a Class Action law suit under Rule 23.  At least that's how it used to be until the Supreme Court decided to literally change the rules in yesterday's case Wal-Mart v. Dukes.  In this case, Justice Antonin Scalia, writing for the majority, decided to raise the bar in Class Action cases, making it more difficult for people who are trying to bring employment discrimination cases against their employer.

Wal-Mart v. Dukes (Ms. Dukes pictured above) was a Class Aciton case of 1.5 million women who either worked or are currently working for all of the Wal-Mart stores from coast to coast who allege they were passed over for promotions and paid less money than their male counterparts between the years of 1998 through to today.  The evidence bears out that women make up 70% of the low-level hourly employees at Wal-Mart but make up only 33% of its management positions. 

Justice Scalia, the Court's longest-serving conservative justice currently on the bench, was joined by the Court's conservative voting block (C.J. Roberts, J. Thomas, and J. Alito) as well as by the Court's defacto "swing voter" (J. Kennedy) in taking the position in favor of Wal-Mart.  Scalia argued that a Class Action suit could not be brought against Wal-Mart primarily for 3 reasons: (i) Wal-Mart's official employment policy literally states that gender discrimination is prohibited (yes, he really cited this as actual proof that the women were not discriminated against at Wal-Mart...because the official policy says so...as if the policy would say anything different); (ii) since employment decisions happen on a case-by-case basis, he interprets that in order for Rule 23 to allow a class action here, the 1.5 million female plaintiffs would have had to have been discriminated against by the exact same boss or the exact same promotion test;  being discriminated against by the same company does not rank high enough on J. Scalia's new commonality test; and (iii) for procedural reasons that I will not bore you with, the plaintiffs were asking for back pay which is inappropriate in a Class Action case.

Justice Ruth Bader Ginsburg, joined by the Court's progressive voting block (J. Breyer, J. Sotomayor and J. Kagan), wrote a separte opinion dissenting in part and concurring in part. She basically agreed with Scalia on the back pay issue, but she sharply disagreed with Scalia that the female plaintiffs had failed to satisfy the requirements necessary to certify their case as a Class Action under Rule 23.  She stated that Scalia's opinion literally changes Rule 23's "threshold criterion with [a] more demanding criterion...and thereby elevates the [Rule 23] inquiry so that it is no longer easily satisfied."  See Ginsburg Opinion, p. 8 (internal quotations omitted).  Ginsburg called Scalia's argument "far reaching" when he said that multiple people being discriminated against by the same company is not enough to make a Class Action suit.  She further argued that Scalia's case-by-case basis approach to employment discrimination cases "leads the Court to train its attention on what distinguishes individual class members, rather than on what unites them."  Id. at 11.  In other words, it defeats the entire purpose of Rule 23 Class Action law suits.

This decision is a new holding that goes against the Supreme Court's prior precedent (much of which was cited by Ginsburg in her dissent).  Every lawyer knows that Rule 23 is supposed to be easy to satisfy, not difficult.  Certifying a case as a Class Action has no bearing on whether the case will ultimately be victorious, so it makes no sense to place such a high standard on what has, up until now, been a fairly simple procedure.  This new rule by the Court, however, makes it harder for discrimination victims to bring their suits as a Class Action, and requires each and every single plaintiff to bring a separate law suit against big corporate employers like Mal-Mart.  Not only does this help big corporations avoid multi-million dollar law suits, but this decision also completely goes against the ENTIRE PURPOSE of Rule 23.  The goal of Rule 23 is to be efficient with time and tax payer money, not the other way around.  Employment discrimination cases should be no exception to this rule.

What do you make of this case?
Should employment discrimination victims be able to bring Class Action law suits?
Who has the better argument between Scalia and Ginsburg?
Is anybody surprised that the Roberts Court decided in favor of big business over the littler person yet again?
Why do you think Scalia raised the bar on Rule 23 here?
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