Actions Lawsuits in Employment Sex-Discrimination Lawsuits: When are they Appropriate?
The class action lawsuit is a somewhat controversial tool, particularly in the case of employment discrimination. In many ways, it is a hallmark of judicial efficiency. After all, if a number of plaintiffs have the same claim against a defendant, it is inefficient to try the same case a number of times. Moreover, later plaintiffs may be unable to recover if earlier plaintiffs exhaust a defendant's financial resources. Therefore, if a company has an employment policy that is facially discriminatory, or has a readily-provable and consistent disparate impact, class-action litigation can be appropriate. However, in many ways the class actions lawsuit is not well-suited for employment discrimination lawsuits. Employment discrimination, particularly gender-based employment discrimination, is frequently subtle and a finding of discrimination is not going to be based on company policies, but on the treatment of a particular individual. Moreover, it seems that unscrupulous employers find ways to evade anti-discrimination laws, which have also been eroded through some subsequent legislation. "There is a reason that the field of labor and employment law -- both as an academic subject and as an arena of social life -- has declined. That is that the labor and employment laws do not address the concerns or vulnerabilities of the majority of the workforce today" (Stone, 2008).
While the use of this class action mechanism is meant to remedy that inequality, it seems to do so at the expense of the basic proposition of judicial fairness, not only for defendants, but for many of the class members. For example, if a company has discriminatory policies but the plaintiff did not experience gender discrimination, then there is no basis for recovery. These are all important factors to consider when looking at the efficacy of the class action lawsuit in employment discrimination lawsuits, and they all played a role in the Supreme Court's recent decision not to allow certification of the class of all female Wal-Mart employees from a particular time period in an employment discrimination lawsuit against the company.
In June, 2011, the Supreme Court reversed a decision by the 9th U.S. Circuit Court of Appeals and blocked a class action sex-discrimination lawsuit against Wal-Mart. The 9th Circuit Court of Appeals had ruled in favor of class certification under FRCP 23(b)(2). The case was filed in 2000 by Betty Dukes, who filed a sex discrimination lawsuit alleging that she was denied the training she needed to advance in the organization and that this discrimination was based on her gender. The plaintiffs alleged that this type of gender-based discrimination was pervasive in the organization and sought to represent 1.6 million women, including all those who work or have previously worked at Wal-Mart since December 26, 1998. The Supreme Court ruled in Wal-Mart's favor, based on the theory that the plaintiffs did not have sufficient things in common to constitute a class. This decision did not mean that women who experienced discrimination could not sue Wal-Mart. However, it did mean that "each member of the class will need to obtain a lawyer to represent her pursue her claim individually against the retailing behemoth" (McKinney, 2011).
One of the more interesting concepts in employment discrimination lawsuits is whether or not class actions are an appropriate way to handle gender discrimination lawsuits. In fact, there is some suggestion that the use of class actions in employment discrimination lawsuits may be seen, by some, as an inappropriate means of contravening the purpose and design of the civil rights lawsuits. "The rules that governed employment discrimination were drafted with an eye to make sure that every case of employee termination or transfer did not become the source of a civil rights action. The goal was to create a regime in which the admitted cases of overt and invidious discrimination could no longer go unpunished" (Epstein, 2003). Of course, employment discrimination lawsuits rapidly expanded beyond the initial scope. "Arguments that certain forms of discrimination were cost-justified (e.g. differential employment because women had higher risk rates than men) were rejected even though these forms of discrimination count as rational (e.g. cost justified) to the economist. At the same time, proof of motive and intention yielded to disparate impact suits,…