[author: Andrew Volin]
The massive gender discrimination class action against Wal-Mart, known as the Dukes case, is breaking up into several regional cases, one of which Wal-Mart has already defeated. The case began in 2000, claiming Wal-Mart discriminated against women across the country with respect to pay and promotions. Last year the U.S. Supreme Court ruled that a nationwide class was improper, because there was no evidence of a common national policy to discriminate against the women.[1]
The plaintiffs in the Dukes case, and the members of the proposed class in Dukes have responded in numerous ways. First, the original Dukes case has been narrowed into a more limited geographic region. Wal-Mart contends that the new version of Dukes is still too large as the proposed class includes over 100,000 prospective members, and hundreds of corporate decision-makers. In September, the federal court in California overseeing Dukes refused to dismiss the case, concluding it was too early to determine whether the narrower class was appropriate.[2]
Second, female employees filed new lawsuits around the country. One case was brought in Texas, and two other complaints were filed in October in Florida and Tennessee. Wal-Mart recently won a battle in the Texas case, persuading the court that the class action claims in the new lawsuit were filed too late and were barred by the statute of limitations. The claims of one of the named individuals were also untimely.[3]
These developments provide lessons for employers, employees, and HR professionals. For employers, even winning a Supreme Court decision does not always mean the case is over. For employees, sometimes the "wheels of justice" move so slowly, along a meandering path, that decades can pass without a case being resolved. For the HR professional, this passage of time reinforces the importance of documenting employment decisions as they occur, before memories fade and witnesses disappear.
[1] Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011).
[2] Dukes v. Wal-Mart Stores, Inc., 2012 U.S. Dist. LEXIS 135554 (N.D.Cal. Sept. 21, 2012).
[3] Odle v. Wal-Mart Stores Inc., No. 3:11-cv-2954-0 (N.D. Tex. Oct. 15, 2012).
