ATLANTA--The U.S. Supreme Court's decision in Wal-Mart Stores Inc. v.
Dukes did not spell the end of employment discrimination class actions,
attorneys said Oct. 13 at an employment law conference sponsored by the National
Employment Lawyers Association.
The class action attorneys also said the decision provides guidance on how
such cases need to be proved, including direction on the use of expert witnesses
on social science and other issues.
Suzanne E. Bish of Stowell & Friedman in Chicago told participants that,
despite Wal-Mart Stores Inc. v. Dukes( 131 S. Ct. 2541, 112 FEP Cases 769
(2011); 62 BTM 193, 6/21/11), “class actions are not dead, and in fact they may
have experienced a rebirth.”
In Dukes, the Supreme Court ruled improper a lower court's
certification of a nationwide class of about 1.5 million female current and
former Wal-Mart employees, finding a lack of commonality or a common question of
law or fact central to resolution of each class member's claims.
Bish represents the class in McReynolds v. Merrill Lynch, Pierce, Fenner
& Smith Inc.( 672 F.3d 482, 114 FEP Cases 710 (7th Cir. 2012); 63 BTM
In that case, the U.S. Court of Appeals for the Seventh Circuit rejected the
employer's attempted reliance on Dukes as a reason to deny class
Instead, in ruling that roughly 700 black Merrill Lynch financial advisers
can pursue a “limited” race discrimination class action under Title VII of the
1964 Civil Rights Act for injunctive relief, the Seventh Circuit found that,
although the African American brokers similarly argued that Merrill Lynch--as
does Wal-Mart--delegates discretion to its managers, the brokers also presented
evidence that such discretion was influenced by two companywide policies
pertaining to the formation of teams and account redistribution.
The Supreme Court denied review of McReynolds earlier this month.
Bish said that under Dukes, as interpreted by McReynolds, “a
single common question can be enough to establish commonality.”
In addition, she said, Dukes “has breathed new life into class action
law, or certainly into our case,” in which class certification had been denied
pre-Dukes, Bish said.
She added that Judge Richard A. Posner, who wrote the Seventh Circuit's
opinion in McReynolds, seemed to understand the cognitive, or implicit,
bias at issue in the case without crediting the underlying social science.
Joseph M. Sellers of Cohen Milstein Sellers & Toll in Washington, D.C.,
who represented the class in Dukes, said it is important to recognize
that the Dukes decision is keyed to the portions of the record on which
the Supreme Court chose to focus.
Dukes simply ruled that challenges to delegations of discretion to
managers alone are insufficient to warrant class status, because they do not
challenge an “unlawful employment practice” for purposes of Title VII, he said.
The high court also found that the social science evidence offered in
Dukes was not sufficiently refined, because it did not focus on
particular Wal-Mart stores, he added.
Nevertheless, Sellers stressed, Dukes does not stand for the
proposition that social science experts always must quantify their research or
opinions, as some commentators have argued.
He added that the distinction between Dukes, McReynolds, and
Ellis v. Costco Wholesale Corp. (116 FEP Cases 118 (N.D. Cal. Sept. 25,
2012); 62 BTM 309, 9/27/11), another case in which a nationwide class recently
was allowed to move forward under Title VII, is the evidence in the latter two
cases of a “top-down” policy through which the delegation of discretion to
By Patrick Dorrian