June 22 2011
Though statistical tricks and anecdotal accounts may sometimes succeed in swaying the court of public opinion, the Supreme Court ruled in Wal-Mart v. Dukes that those tactics fall well short of proving that women suffer systemic discrimination in the workplace. In a 5-4 decision, the Court ruled that case the could not proceed because the 1.5 million current and former Wal-Mart employees suing the company for alleged sex discrimination could not legally constitute a "class." It's a good thing, too. The Court affirmed that the mere allegation of sex discrimination against an employer is not enough to dispense with federal court rules and procedures for bringing forth class action lawsuits. Lowering the bar for class action suits undermines the rule of law in our already over-lawyered and litigious society. All Americans, whether male or female, employee or employer, deserve due process. It's precisely that equality of due process that protects women.
Requirements for bringing a class action suit
To preserve the rights of all parties to the litigation, the Federal Rules of Civil Procedure contain specific requirements for plaintiffs who wish to represent a large class of people. Plaintiffs must first show four things: a large number of people belong in the class; they all share a common legal complaint against the defendant; the claims made by the representative plaintiffs are typical of the people in the class they seek to represent; and, that the plaintiffs (and their attorneys) will protect the interests of the other class members.
Once this first hurdle is met, the second test relates to the specific type of class action suit, which determines the type of relief the plaintiffs are entitled to seek. This second test also determines whether the court mandates that all potential class members join the suit or whether class members will be allowed to opt out of the proceedings and preserve their individual rights to bring a suit.
In Wal-Mart v. Dukes, three plaintiffs sought to represent 1.5 million current and former female Wal-Mart employees in one of the largest ever class action lawsuits. They alleged that the decisions made by their local supervisors regarding pay and promotions reflected a company policy to discriminate against women, and they sought to mandate that all potential class members join their particular lawsuit.
Wal-Mart's corporate policies, like every other major company in America, explicitly prohibit discrimination, penalize employees who violate their antidiscrimination rules, and encourage diversity among its employees. Instead of a top-down business model, Wal-Mart gives individual store managers discretion in making salary and promotion decisions for each employee.
Weak evidence of broad corporate bias
Discrimination lawsuits are generally fact and situation specific, and the plaintiffs in this case had no evidence that it was Wal-Mart's policy to encourage store managers to discriminate against women employees. The only "proof" plaintiffs could offer of a broad scheme of discrimination consisted of a sociological study, a statistical analysis, and anecdotes.
The sociological study concluded that Wal-Mart's "strong corporate culture" makes it "vulnerable" to "gender bias."
The statistical analysis compared, among other things, the number of women promoted to management with the percentage of women working in hourly positions. It concluded, "that there are statistically significant disparities between men and women at Wal-Mart...[that] can be explained only by gender discrimination."
The anecdotes were from approximately 0.008 percent of class members relating their experience in 7 percent of Wal-Mart's stores. Betty Dukes, Edith Arana, and Christine Kwapnoski, for example, offered alleged accounts of firings, demotions, and comments they claimed were motivated by sex and race discrimination.
But the plaintiffs sought to represent millions of women, all holding different positions, working in different departments, under different managers, in different stores, located in different cities and states.
Justice Scalia, writing for the majority, found the evidence offered by the plaintiffs insufficient, and said that the plaintiffs "wish to sue about literally millions of employment decisions at once." The Supreme Court found that the lower courts were wrong to allow the case to proceed as a class action and dismissed the lawsuit.
Ruling protects women and all Americans
The Court's ruling, of course, does not prevent women from alleging employment discrimination by Wal-Mart stores or supervisors. They must simply offer evidence of specific discriminatory practices so that each case can be decided on its merits. That is the burden of any plaintiff, and courts shouldn't open the floodgates to broad litigation just because the plaintiffs are women.
Loosening the rules to make it easy to bring a class action discrimination suit could actually jeopardize the system that holds everyone equal in eyes of the law. By maintaining the requirement that plaintiffs in a class action share a common and specific complaint, the Court will help prevent abuses of the legal system, something that women - and all Americans -should applaud.
Anna Rittgers is a Virginia attorney and senior fellow at the Independent Women's Forum.