A Facebook friend asked for input from lawyers about the Walmart v. Dukes opinion recently issued by the Supreme Court of the United States (SCOTUS). I'm still recovering from a series of 14 and 15 hour days as our state legislature rushed (for no apparent reason) to end the session by June 18. Except, it's not really ended, just on recess until July 13 (more on this topic on another day). My response to his inquiry is below. Nothing fancy. My brain is muffled in cotton.
There were two major questions for SCOTUS to address in this case.
First Question: I concur that the 9-0 vote on the procedural question, certifying the plaintiffs as a class, is not an issue. The group was far too large and lacking in commonality to certify as a class. The proposed class was too broad; it would have included every female Wal-Mart employee since late 1998, and it's a stretch to assume that they were all victims of gender bias.
Second Question: However, SCOTUS split 5-4 on the question of sending the case back to the trial court to determine whether it could proceed in a narrower form. Justice Ruth Bader Ginsburg, a member of the minority on the latter question, warned that the Wal-Mart ruling would leave legitimate bias cases “at the starting gate.” Ginsburg, Sotomayor, Breyer, and Kagan all dissented from the majority on this second question. Ginsburg wrote the dissent.
Justice Scalia, who wrote the majority opinion, significantly restricts the rules defined by Congress for class-action lawsuits. Scalia argued that plaintiffs can gain a court’s certification of a class to pursue job-discrimination claims only if they can show “some glue holding the alleged reasons for all these decisions together.”
In other words, they must show that they are likely to win their case, to meet the “glue” test, a term that Scalia leaves undefined. What does it mean? How will it be determined that the "glue" test has been met? It appears that alleged victims of discrimination will, in the future, have to meet this test before they even will be allowed to certify as a class. It appears from the opinion that if discrimination is alleged in a wide enough variety of employment categories and locations, the plaintiffs cannot make a showing of commonality,without such a showing, they can't be certified as a class.
The other legal analyses of this case that I've read conclude that such a standard makes the cost and difficulty of bringing a class-action suit virtually prohibitive. So the Wal-Mart employees who want to continue to pursue their case will have to sue the company individually, if they can afford to do so. Or they can give up. This is what all the concern is about, not the decision that there were too many members and not enough commonality to certify them as a class.
In my legal opinion, the Supreme Court has increased the difficulty of seeking redress for illegal discrimination by employers through the use of class action lawsuits.
The entire opinion, including the dissenting opinion on the second question may be found at: Walmart v. Dukes.