Two weeks ago I discussed how the Supreme Court's decision in Dukes v. Wal-Mart Stores Inc. overturning certification of a class totaling more than one million workers did not spell the end of the case or employment class actions in general. A few days later, at a National Employment Lawyers Association conference I attended, the group of mostly plaintiffs' lawyers made clear that they do not view the Dukes decision to be the great loss that many supposed.

Instead, a number of speakers stated that Dukes provides fresh guidance from the high court on what is needed to prove employment class cases, and the proper role of social science evidence regarding the implicit biases that may have shaped the challenged employment procedures or policies in a particular case. 

They said that guidance was used in McReynolds v. v. Merrill Lynch, Pierce, Fenner & Smith Inc. and Ellis v. Costco Wholesale Corp., as counsel in both cases made certain to present the type of evidence the Supreme Court found missing in Dukes--proof of a "top-down" policy through which the challenged delegation of managerial discretion was exercised. 

The speakers also questioned whether expert testimony from a social scientist of the sort the justices found wanting in Dukes is necessary or helpful in building an employment class case. On the one hand, a good portion of the conference involved discussion of the validity of the social science underlying the implicit or hidden bias theory and the use of that theory in class litigation. Other speakers, however, suggested that the reliability of proof of implicit bias has not yet been tested from a legal perspective and that some members of the defense bar have suggested that implicit bias evidence is prohibited by the federal rules of evidence as inadmissible "character" evidence. 

In the courts, the Dukes case, or traces of it, remained active as two more spinoff cases from the original class action were filed in Tennessee and Florida. In addition, the U.S. District Court for the Northern District of Texas ruled in one of the original Dukes spinoff cases--Odle v. Wal-Mart Stores Inc.--that the regional class claims of seven female former or current Wal-Mart employees had to be dismissed as untimely.

Other recent activity by the Supreme Court in its new term included:

• Oral argument on whether federal district court review of a final decision by the Merits System Protection Board disposing of an employee's discrimination claim is proper in a "mixed case" even where MSPB never reaches the merits of the bias claim.

• The denial of review of a Tenth Circuit decision that the Lilly Ledbetter Fair Pay Act did not excuse the failure of two school custodians to file age discrimination charges within 300 days of learning their jobs were being eliminated and they were transferred to lower-paying positions.

• The decision not to address who has the burden of proof when the "direct threat" defense is raised in an Americans with Disabilities Act case.

• The denial of certiorari in the McReynolds case.