Wal-Mart v. Dukes: What will the long-term impact be?

The last year saw arguably one of the most important employment decisions in the last several years. In June 2011, the United States Supreme Court decided the Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2545, 180 L. Ed. 2d 374 (2011) case. In this case, a group of women sought certification as a class to file what would likely have been the largest employment class action suit in history for gender discrimination.

In a twenty-seven page opinion authored by Justice Antonin Scalia, the court decided that the women, approximately 1.5 million current and former employees of Wal-Mart, could not sue the employer as a class. Justice Scalia held that the inherent fact specific nature of gender discrimination claims caused the employees claims to lack the commonality required for certification under Federal Rule of Civil Procedure 23(a)(2). The Court also found that certification as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) was impermissible because the claims for back pay were not merely incidental to the claims for injunctive and/or declaratory relief.

Although the case was immediately lauded as a boon for employers and criticized as an example of judicial activism, it’s too early to predict what impact the case will actually have on employment discrimination and class action cases. At least one federal court has already rejected Dukes’ interpretation regarding the use of expert testimony in class action certifications, Fosmire v. Progressive Max Ins. Co., 80 Fed. R. Serv. 3d 1351 (W.D. Wash. 2011), and it remains to be seen whether state courts will interpret state class action rules in the same manner as the U.S. Supreme Court interpreted the federal rule. Here in Kentucky, the civil rules regarding class action formation are substantially similar to the federal rule, making it likely that Kentucky courts interpret the rule in line with the United States Supreme Court’s. Regardless of the eventual impact of the decision, the fact remains that the Dukes case has the potential to change litigation of both individual gender discrimination claims and class action suits.

The Dukes case captured the attention of the legal community and we’re carefully watching to see how the law in this area progresses. We’ll continue to provide updates as the case law develops.

 Martha L. Alexander

Martha is an associate at Sturgill, Turner, Barker & Moloney, PLLC and concentrates her practice in the areas of employment law, education law and governmental law. She regularly works with employers, public entities and K-12 and higher education institutions defending them against claims of EEOC, sex, race and age discrimination, wrongful termination and Civil Rights violations.

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