50 for 50: Five Decades of the Most Important Discrimination Law Developments - Number 9: And Then There Were None”: The Story of the Rise and Fall of Discrimination Class Actions under Title VII

by Hirschfeld Kraemer LLP
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The EEOC made a name for itself in the early days of Title VII by bringing large “pattern or practice” cases.  Employers were forced to reevaluate their policies to see if protected groups — frequently females — were being adversely affected.  That, in turn, gave birth to discrimination class actions on behalf of groups of employees brought by private lawyers.  

The notion of a class action sex discrimination case involving approximately 1.5 million current and former female management employees at Wal-Mart stores across the country kept even non-lawyers riveted for a many years.  However, the final outcome of this case turned on a close read and much disagreement about a topic much less monolithic and interesting to the majority of Americans – Federal Rule of Civil Procedure (FRCP) Rule 23.  FRCP 23 governs class actions in federal courts across the U.S.

At the turn of the century (yes, we can say that now), Betty Dukes, a California Wal-Mart employee, filed a Title VII sex discrimination claim, seeking to represent a class of all similarly aggrieved female employees at Wal-Mart around the country.  She alleged that despite hard work and positive performance reviews, Wal-Mart denied her the training she needed to advance to a position with a higher salary.  Wal-Mart asserted that it had legitimate non-discriminatory reasons for its decision not to promote Dukes and that her claims on behalf of a putative class of aggrieved women failed to meet the standards for a class action under FRCP Rule 23.  FRCP Rule 23(a) requires that (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.  FRCP Rule 23(b)(2) states: (b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if: . . . (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or . . . .”

In June 2004, the United States District Court in San Francisco certified a class under FRCP Rule 23 in the case.  Wal-Mart appealed.  A three judge panel from the Ninth Circuit and then the full Ninth Circuit upheld the District Court’s decision.  Wal-Mart appealed again.  This time, the United States Supreme Court overturned the decision to allow the case to proceed as a class action.  A divided court found that there was insufficient evidence that the class members’ claims shared common questions of law or fact because the focus of a Title VII action necessarily had to be the reason for each particular employment decision in question and that without a generally applicable policy at issue in each claim, the requisite “glue” between the claims was missing.  The Court also determined that class certification under FRCP(b)(2) was inappropriate on the issue of backpay relief sought by the putative class.  Critics of the Supreme Court decision have argued that the burden the Court’s ruling placed on class action plaintiffs to show commonality among class members through a policy of general applicability makes such cases impossible to bring in the modern era of widespread anti-discrimination policies.  Regardless of whether you agree with the decision reached by a 5-4 majority of the Court, the Court’s decision has made it more difficult for plaintiffs to bring class actions under Title VII.  The larger the class and the employer, the harder it will be to establish the necessary proof to meet the plaintiffs’ burden in these cases.

 

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