Four months after the United States Supreme Court, without ruling on the merits of the sex discrimination case under Title VII of the Civil Rights Act of 1964, told Betty Dukes and her co-plaintiffs that their lawsuit against Wal-Mart could not proceed as a nationwide class action, the plaintiffs have re-organized and are trying again with smaller, regional class actions that may be permitted by the Supreme Court case.
We blogged about the original class action lawsuit in March, when the Women’s Law Project signed an amicus brief authored by the National Women’s Law Center and the ACLU in support of the plaintiffs. The class included 1.5 million women who work or have worked for Wal-Mart, women we believe were properly joined together in a single class action because Wal-Mart’s discriminatory decision-making processes affected all of them. As statistical evidence shows, female Wal-Mart employees in all regions earned less, held lower-paying jobs, and received fewer promotions than men, even though on average they worked longer for the company than men.
In Wal-Mart v. Dukes, 131 S. Ct. 2541 (2011), the Supreme Court rejected the possibility of a nationwide class action, concluding that the members of the proposed class did not satisfy the requirements of Federal Rule of Civil Procedure 23 (a) of having questions of law or fact in common (“commonality”) and that their claim for backpay did not meet the requirements of Rule 23(b)(2). By departing from established understandings of “commonality,” transforming it from a “threshold criterion” that is “easily satisfied” into a much harder inquiry to satisfy (see Justice Ginsburg’s dissent), the Supreme Court bent over backwards to make it harder for employees and consumers to challenge big corporations in court.
Now, the battle is on again as women bring class action suits region by region: a case was filed against Wal-Mart in California federal court on October 27, and another in Texas federal court the next day. Attorney Joseph Sellers says that we can expect to see an “armada of cases” across the nation in the near future.
By splitting up the nationwide lawsuit into many regional lawsuits, the plaintiffs hope to increase their chances at success by defining smaller classes and adjusting their arguments to conform to the Supreme Court’s anti-employee ruling. Legal action against Wal-Mart, the nation’s largest private employer and a bastion of gender discrimination, is as necessary today as it was when the plaintiffs originally filed their nationwide class action a decade ago. We continue to support the women as they pursue civil justice region by region.
