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Supreme Court clarifies standards for class certification

The Supreme Court's 2011 ruling in Wal-Mart v. Dukes is fast becoming the new seminal citation for employers seeking to prevent employment discrimination plaintiffs from gaining class certification. In the case underlying the Wal-Mart decision, the plaintiffs alleged Wal-Mart engaged in a pattern of systemic gender discrimination, which prevented women from advancing out of lower-paying jobs at a much higher rate than their male associates. Wal-Mart claimed it had a strong anti-discrimination policy and pointed to its local managers, including those in its Detroit stores, who made all personnel decisions.

In a close 5-4 vote, the Supreme Court held that the plaintiffs did not share enough similar characteristics to be certified as a class. The Court also ruled that Wal-Mart was not liable for its local managers' personnel decisions even where those decisions negatively affected women at a higher rate than men.

In the approximate two years since the Wal-Mart ruling, employers have used it very successfully to slow down the rate of new class action filings. The ruling has also been used to effectively undo existing class actions and to have adverse judgments vacated. A Berkeley, California, litigation resource center, The Impact Fund, documented a more than 50 percent drop in the number of class action filings since the Wal-Mart ruling.

While this Supreme Court ruling makes class certification more difficult, Title VII of the Civil Rights Act of 1964 continues to provide protections for groups of employees who believe they have suffered systemic workplace discrimination based on gender, race or membership in any of the other classes of employees protected under Title VII. An experienced employment attorney would be able to discuss which employment acts constitute discrimination and identify available recourse for someone who has been discriminated against.

Source: Pro Publica, "The Impact and Echoes of the Wal-Mart Discrimination Case", Nina Martin, September 27, 2013

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