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Wal-Mart discrimination case: Will it change the future of class-action lawsuits? [The Conversation]

June 21, 2011 |  3:58 pm

Wal-Mart lawsuitMonday's Supreme Court decision ruling against the 1.5 million women suing Wal-Mart for alleged systematic sex discrimination may ultimately raise the bar on what constitutes a "class" in a class-action lawsuit. For those catching up on the case:

The court unanimously decided that without individual trials, the women of Wal-Mart could not seek monetary reparations. The majority opinion, written by Justice Antonin Scalia, stated that the only thing the women in the suit had in common was that they were women.

"[Members of the class] held a multitude of different jobs, at different levels of Wal-Mart's hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed. . . . Some thrived while others did poorly. They have little in common but their sex and this lawsuit."

That said, a minority opinion, written by Justice Ruth Bader Ginsburg, held that there was enough evidence of discrimination for the case to proceed to trial.

What does this mean for the future of class-action suits? Here's what opinioators are saying.

The Washington Post editorial board's stance was that the court's decision was a good one. Just as Scalia said, there was too wide a variation among the women, who held different jobs in different states at different levels of employment and for different lengths of time; it would be very difficult to show sufficient commonalities between them. The board thinks raising the bar for class-action suits isn't a bad thing.

Class actions may no longer be the blunt instruments they once were, but they can and should remain an important, more focused tool that gives workers the strength in numbers often needed to combat discrimination.

The editorial board of the New York Times argued that, historically, the criteria to be certified for a class-action suit have not been very high. The board also noted that individual cases will be difficult to pursue because the wage losses the women potentially suffered were not large enough to encourage representation.

Now, without saying what the actual standard of proof is, the majority requires that potential members of a class show that they are likely to prevail at trial when they seek initial certification. In this change, the court has made fact-finding a major part of certification, increasing the cost and the stakes of starting a class action.

The decision also makes it difficult for other suits like this to be taken up by the courts, according to the Los Angeles Times editorial board, which worries that it potentially upholds corporate policies of discrimination.

This takes far too narrow a view of commonality and would protect a companywide policy of gender discrimination or racial discrimination so long as it was manifested in different settings and job categories.

An earlier editorial  by The Times refuted Scalia's position that discrimination only happens within a corporation when there is a biased policy on the books.

It is possible both that Wal-Mart encouraged a culture of discrimination and that it neglected to monitor practices at its regional outlets.

Daniel Fisher, a senior editor at Forbes, said the case helps corporations prevent suits like these, because the "glue" Scalia said is supposed to hold class members together can be decided by a jury.

The problem was hundreds of those managers were women who also would have belonged to the class of plaintiffs -- victims and perpetrators at the same time. And lawyers couldn't point to a single national policy at Wal-Mart that could have caused the discrimination, because Wal-Mart's only policy was a stated commitment to diversity.

He also cites a blog post by Jim Beck of Drug and Device law that says the case could affect medical class-action suits.

[T]he Dukes lawyers, by structuring their case as an injunction procedure, may have killed the fun for everybody. The Supreme Court was unanimous in deciding that lawyers can't clothe their claims in the language of injunctive relief when they are really seeking money for hundreds of thousands of individual plaintiffs, because that would deny the defendant its right to an individual trial on damages for each one.

An editorial in USA Today  notes that if this precedent results in a large number of cases being disqualified, the Supreme Court may need to redefine the criteria for a "class" once again.

But as a counterpoint, USA Today also ran an Op-Ed by Robin Conrad, executive vice president of the National Chamber Litigation Center, who said the case is a a positive step toward curbing the abuse of class-action suits by trial lawyers and allows corporations to defend themselves against allegations of discrimination.

They have also made it far too easy for trial lawyers to lump plaintiffs with legitimate claims into a single class-action lawsuit along with many more plaintiffs with frivolous claims. These distortions of the law force defendants to settle unmeritorious claims that would never have prevailed in individual trials.


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Betty Dukes was one of the plaintiffs in the discrimination suit against Wal-Mart.  Credit: Larry Downing / Reuters 

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