On June 20, 2011, after a 10-year slog through lower courts, the Roberts Supreme Court reversed the class certification in Dukes v. Wal-Mart, the largest class action in U.S. history -- more than 1.5 million women employees at Walmart stores alleging sex discrimination in promotions and pay. In the year since, the ruling has been touted as a godsend for corporations. It has been cited numerous times by judges as a reason to throw out class actions in such disparate areas as toxics in a neighborhood, overtime pay cases, and insurance overcharges.
The women aren't giving up. Smaller regional suits have been filed (the Supremes essentially said the class was just too big), and lead plaintiff Betty Dukes will appear at a rally in Washington on June 20. Representative Rosa DeLauro is introducing the Equal Employment Opportunity Restoration Act to put some teeth back into the ability to sue for discrimination as a class. The bill also makes it clear that merely having a written anti-discrimination policy is not enough. Companies can't write the right words down while continuing with a "good old boy" system of pay and promotion, as the plaintiffs clearly demonstrated in the Walmart case.
Joe Sellers, a partner in the Washington D.C. law firm of Cohen Milstein, was the lead counsel on Dukes, and he's also leading on the new cases against Walmart. Sellers has been recognized as one of the top 10 plaintiffs' employment lawyers in the country, and named by The National Law Journal as one of "The Decade's Most Influential Lawyers" in 2010. I talked to him recently about the Walmart case on my radio show, Equal Time With Martha Burk.
MB: This case was about whether women could sue Walmart as a class. Lower courts said yes, but the Supreme Court said no. Many people don't know exactly what a class action is. How does it differ from an individual case?
JS: Sometimes when the individuals have interests that are sufficiently similar -- such as when they have been subject to the same kind of discriminatory practices as in the Walmart case, then it's appropriate to have it go forward as a class case [individuals can band together to bring one large case].
MB: Now that the Supreme Court has said they can't go forward as a class, what happens to the women? Are Betty Dukes and the others just out of luck?
JS: They're not out of luck. Time permitting an individual woman can bring a charge on her own. We also believe the ruling allows for classes more narrowly drawn than the original, which was a nationwide class. We are developing smaller, regional classes. Two are already pending in California and Texas.
MB: Can you tell us where these will be filed?
JS: Not as yet, but I would say that any woman [who is potentially a litigant] start by going to the website walmartclass.com and filling out the form and leaving a confidential message for the lawyers.
MB: To be a part of this, does a woman have to be working for Walmart now?
JS: No, she has to have been a Walmart employee sometime between the end of 1998 and the present. Deadlines for different states are on the website.
MB: Just to be clear, the Court only ruled that the case couldn't go forward as a class. They didn't actually rule on the discrimination. You had evidence that women held two-thirds of hourly jobs at Walmart, yet were only one third or management, they were paid less than men in the same jobs, and often had more seniority and higher performance ratings.
JS: Very important observation. The Supreme Court clearly did not say whether there was sex discrimination going on. All it ruled was the evidence that was presented was insufficient to justify a nationwide class. It didn't preclude smaller classes, and it certainly didn't rule on whether there was actual discrimination at Walmart. That's one of the reasons for the regional cases. We believe the evidence of discrimination is still very strong.
Listen to the full interview here:
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