Wednesday, June 22, 2011

The Significance of the Walmart Decision

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.


mrs. miss alaineus said...

most of the media coverage here has been on the first point-for about 5 minutes on the news i felt like i was living a grisham novel.

i wonder if the glue test will be like the pornography test and they will 'know it when they see it'....

either way you look at it, it's 1.6 more good reasons not to shop at fail-mart.

Nance said...

Boy, am I ignorant on this one. I'm currently part of a group suit (not employment-based), and I was under the impression that there always have been guidelines that apply to defining a class. Not so?

Sheria, please take on Clarence Thomas next! But get some rest, first.

Sheria said...

Nance, you are correct. Legal standards for defining a class for purposes of a class action lawsuit existing before this case. What the Walmart case and several others involving large corporations called into question is how large can a class be, how expansive can the certification of a group as a class be? Lower courts in certifying female employees of Walmart as a class opened the door for a very loose definition of class. All female employees of Walmart beginning in 1998 were potential members of the class action suit if allowed to proceed. Walmart petitioned the SCOTUS to determine what the paramaters were of current law covering certifying a group of plaintiffs as a class. The question of the size of the class was the part that all of the justices agreed upon in a 9-0 decision. However, the other issue was much more complex and was a split decision, 5-4. That decision will have a chilling impact on the ability of legitimate groups to be able to establish that they constitute a class. Class action lawsuits are an important tool, especially in discrimination cases which place the burden of proof on the plaintiff's and tend to drag on for years. The Walmart case has been ongoing for 10 years. Such litigation is very expensive for a single plaintiff.

Bucko (a.k.a., Ken) said...

Not a fan of Walmart, but I think they were smart in seeking specificity.

jack-of-all-thumbs said...

Many thanks in clarifying this. I confess to not having paid enough attention.

And I concur with Nance: get some rest.

Mark said...

I think the far more intersting question is how do we move the Supreme Court to a more objective view of the law. Citizens United, for example, was such a blatant expression of political philosophy.
And the lack of judicial guidelines so that Clarence Thomas can get away with a blatant conflict of interest--it's part of the relentless erosion of democracy...

Kyle said...

Sheria, I agree with your summation. This will hamper efforts from many plaintiffs that seek to go after their employer for misdeeds. large companies or corporations have vast monetary resources and legal teams at their disposal. The average person can't compete with that kind of power over time. This decision added more power to business arsenals and curtailed the power of individuals to seek justice.