On 20 June 2011, the US Supreme Court decided by 5 votes to 4 that the largest Class Action suit in the Court's history could not go ahead due to a lack of commonality among the individuals concerned.
Regular readers of the bulletin will remember that Betty Dukes and two other women had sought permission from the Supreme Court to represent 1.5 million other present and former employees of Wal-Mart employed since 26 December 1998 and its sister supermarket stores in the form of a class action law suit. The group had requested the class action to seek injunctive and declaratory relief, punitive damages and back pay. This would have been a significant claim, given that Wal-Mart is the largest private employer in the US.
The women argued that the effect of Wal-Mart policy whereby local managers are given discretion over employee promotion and rate of pay was in violation of the Civil Rights Act of 1964. They alleged it resulted in discrimination against female employees, as in practice managers chose to promote more men over women, and to pay men more than women. They also alleged that Wal-Mart chose to continue this policy, despite full knowledge of its discriminatory effect.
The plaintiffs used research compiled by academic sociologist Dr.William Bielby of the University of Illinois which showed that Wal-Mart's personnel practices were vulnerable to gender discrimination.
However, the Supreme Court has decided that the group could not be certified as a class to go ahead with the lawsuit. The Court, led by Justice Scalia, held that the group members did not constitute a class under the Federal Court Rules because the members did not possess the "commonality" requirement. In this regard the Court noted that the plaintiffs wished to sue Wal-Mart for "literally millions of employment decisions at once". Justice Scalia stated "Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members' claims for relief will produce a common answer to the crucial question why was I disfavoured".
The Court also noted that it was not the corporate policy of Wal-Mart to promote men over women. Justice Scalia discounted the plaintiffs' evidence as lacking the "significant proof" requirement to prove that Wal-Mart operated a general policy of discrimination. The Court said it was unlikely that the local managers would operate in a uniformly discriminatory manner without a common direction.
Justices Ginsberg, Breyer, Sotomayor and Kagan dissented in part from the Court's decision, and stated with reference to previous case law that the requirement for formation of a class action "does not require that all questions of law or fact raised in the litigation be common". The dissenting judges further noted that women filled 70 per cent of the hourly jobs in the retailer's stores but only constituted 33 per cent of management employees. These judges also mentioned the gender bias in Wal-Mart's policy, including senior management's reference to female associates as "Little Janie Qs".
The lawyers for the plaintiffs are now reviewing the judgment and plan to regroup. In the meantime, women affected by Wal-Mart's policy are being encouraged to pursue individual complaints against the company to the Equal Employment Opportunity Commission.
Click here to view the official website of the Wal-Mart Class Action.
Click here to view an article on the judgement from The New York Times.