This paper examines the appropriateness of class action lawsuits as a mechanism for resolving gender-based employment discrimination claims. Using the Supreme Court's 2011 decision in Wal-Mart v. Dukes as its central case study, the paper evaluates the tension between judicial efficiency and procedural fairness. It considers whether large, heterogeneous plaintiff classes satisfy commonality requirements under FRCP 23, raises due process concerns about confronting millions of claimants, and explores intra-class conflicts of interest. The paper concludes that, while class actions serve important functions in cases involving facially discriminatory policies, they are ill-suited to broadly defined employment discrimination classes where individual circumstances vary widely.
The class action lawsuit is a somewhat controversial tool, particularly in the context of employment discrimination. In many ways, it is a hallmark of judicial efficiency. After all, if a number of plaintiffs share the same claim against a defendant, it is inefficient to try the same case multiple 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 action lawsuit is not well suited for employment discrimination cases. Employment discrimination — particularly gender-based employment discrimination — is frequently subtle, and a finding of discrimination is often based not on company policies but on the treatment of a particular individual. Moreover, unscrupulous employers find ways to evade anti-discrimination laws, which have also been eroded through subsequent legislation. As Stone (2008) observes, 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: labor and employment laws do not adequately address the concerns or vulnerabilities of the majority of the workforce today.
While the 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 class members. For example, if a company has discriminatory policies but an individual plaintiff did not personally experience gender discrimination, there is no basis for recovery. These are all important factors to consider when evaluating the efficacy of class action lawsuits in employment discrimination cases, and they all played a role in the Supreme Court's recent decision not to allow certification of a class comprising all female Wal-Mart employees from a particular time period.
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 had ruled in favor of class certification under FRCP 23(b)(2). The case was filed in 2000 by Betty Dukes, who alleged that she was denied the training she needed to advance within the organization and that this denial was based on her gender. The plaintiffs alleged that this type of gender-based discrimination was pervasive throughout the company and sought to represent 1.6 million women — including all those who worked or had previously worked at Wal-Mart since December 26, 1998.
The Supreme Court ruled in Wal-Mart's favor, holding that the plaintiffs did not have sufficient characteristics 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 would need to obtain a lawyer to represent her and pursue her claim individually against the retailing behemoth (McKinney, 2011).
One of the more interesting questions in employment discrimination law is whether class actions are an appropriate vehicle for gender discrimination claims at all. There is some suggestion that using class actions in employment discrimination lawsuits may be seen by some as an inappropriate means of circumventing the original purpose and design of civil rights legislation. The rules that governed employment discrimination were drafted with the aim of ensuring 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 admitted cases of overt and invidious discrimination could no longer go unpunished (Epstein, 2003).
Of course, employment discrimination lawsuits rapidly expanded beyond that initial scope. Arguments that certain forms of discrimination were cost-justified — for example, differential employment practices based on the claim that women had higher risk rates than men — were rejected, even though such forms of discrimination may appear rational to an economist. At the same time, proof of motive and intention yielded to disparate impact suits, resulting in an enormous expansion of potential liability (Epstein, 2003).
"Why Wal-Mart's decentralized policies defeated class commonality"
"Constitutional limits on confronting 1.6 million plaintiffs"
"Diverging plaintiff interests undermine class cohesion"
Because of the above-stated reasons, class action lawsuits for employment discrimination with a potential plaintiff class as large and as varied as the one in Dukes are not the appropriate means of settling those conflicts, and the Supreme Court's decision — which may have seemed to favor the Goliath over the Davids — actually reflects sound judicial reasoning rather than corporate favoritism.
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