Unless you’ve been living under a rock this week, those in the employment law/human resources field have inevitably heard about the U.S. Supreme Court’s decision in the Wal-Mart v. Dukes case. The decision, which was handed down Monday, reversed the Ninth Circuit’s certification of a class of approximately 1.5 million female employees claiming gender-based pay/promotion discrimination. Since we’re a couple of days behind the curve (we haven’t been under a rock, just busy!), and since so much has already been written about this decision, instead of reinventing the wheel we decided to highlight points from a few of our favorite posts on the issue.
In Wal-Mart v. Dukes: What the Class-Action Decision Really Means for Employers, Dan Schwartz of the newly-revamped Connecticut Employment Law Blog gives an easy-to-understand analysis of how the decision may impact employers. In a nutshell, Dan believes the decision stands for the proposition that a “mega-class action” will have difficulty proceeding absent a very specific and tangible policy or practice of discriminating against a particular class of workers. He also gives a couple helpful pointers. We couldn’t agree more with his first “takeaway” — if your company’s policies and enforcement mechanisms aren’t in top notch shape, fix them now!
Charles C. Warner of Porter Wright’s Employer Law Report gives a very thorough review and legal analysis of the decision in Wal-Mart v. Dukes: Supreme Court Rejects “Expansive” Gender Bias Class Action in Absence of “General Policy of Discrimination.” For those of you interested in the details of the case, including its history, procedural posture, and each side’s arguments, this is the post for you.
In The 7 Key Points for Employers from the Supreme Court’s Wal-Mart v. Dukes Opinion, Jon Hyman of the Ohio Employer’s Law Blog gives a great breakdown of important points employers should take away from the decision. We particularly like the way he sums it up: “Dukes means that corporate America can exhale a huge sigh of relief–a Court that has been surprisingly employee-friendly saved its biggest decision to flex its pro-business muscles.” Jon is right–this decision was a clear win for employers in a climate where employee-friendly laws and rulings are all the rage. Even better than this quote, though, is the follow up Jon did today in the brilliantly-titled Wal-Mart v. Dukes Does Not Equal Barefoot and Pregnant.
How can you not click through to a post with that title? In response to what some are basically calling an assault on women’s rights, Jon explains,
There is no doubt that by limiting class actions, Wal-Mart was a big win for businesses. But let’s not confuse what Wal-Mart is for what it is not. It is not a death blow to women’s rights in the workplace. It will not eliminate all of the good that Title VII has done for women (and its other protected classes). It will not take us back in time to the days of June Cleaver and Harriet Nelson.
He’s right (again). The Supreme Court simply isn’t going to allow over-zealous plaintiff lawyers to lump literally millions of people together in one action and allow them to recover damages without having to prove their own individual set of facts and damages. Nothing in Dukes will prevent women from bringing actions for gender discrimination. Let’s not get caught up in dramatics and lose sight of what the decision is versus what it is not. To quote Jon yet again, “Such knee-jerk overreactions unnecessarily polarize us into positions that do nothing to further the debate over the real issue—eliminating workplace discrimination.”