It’s been two years since the split 5-4 U.S. Supreme Court ruling in Wal-Mart v. Dukes was handed down in June 2011.
Since then, our Boston employment discrimination attorneys know that the echoes of that case have been heard in civil lawsuits throughout the country. Non-profit journalism site ProPublica reports that since the ruling was handed down, it has been cited more than 1,200 times in subsequent federal and state court rulings.
The Dukes case involved female employees of the retail giant who claimed they were systemically discriminated against in favor of their male colleagues when it came to issues of pay and promotion. Encompassing some 1.5 million workers and with billions of dollars at stake, it was one of the most expansive class action cases ever brought. The court didn’t disagree that the woman had been treated unfairly. However, it determined that there wasn’t enough commonality among class members to warrant a class action claim.
As for what that means on the legal landscape, it has resulted in jury verdicts overturned, class action lawsuits decertified or rejected and settlements thrown out. In general, the Dukes decision has been a boon for employers and a setback for minorities claiming class-action level discrimination.
For example, in Pennsylvania recently, a federal appeals court upheld the dismissal of a $7 million settlement that had been reached between National City Bank and more than 150,000 Hispanic and black borrowers who had claimed discrimination in terms of mortgage fees and points during the housing bubble. While neither side had pressed for the case to be revisited (it had been settled in 2010),the court moved to do so anyway because it determined that based on the guidelines set forth in Dukes, the case likely never would have been certified for class action status.
As the Workplace Class Action Blog points out, in 2010, the year prior to the Dukes decision, the top 10 class action settlements in the country totaled nearly $350 million. In 2012, the year after Dukes, the total fell to $45 million, a drop of about 87 percent.
That doesn’t mean that such battles are impossible to win. It just means it’s tougher to proceed with a claim in the form of a class action. That means most discrimination claims are going to be filed on an individual basis.
The high court’s main problem seems to have been the notion that a company as large as Wal-Mart should not be held responsible for the workplace decisions of thousands of local managers, who were exercising their own discretion – even if those decisions ended up collectively having a disparate effect on female workers.
In effect, it’s alleged that the plaintiffs were overreaching.
Still, those seeking to make a claim of discrimination shouldn’t be discouraged. Know that success is still possible, and that choosing a law firm with proven experience can make the difference.
The Brown Law Firm, LLC, has offices in Belmont and Boston. For a free and confidential consultation, call 617-489-0817 or contact us online.
The Impact and Echoes of the Wal-Mart Discrimination Case, Sept. 27, 2013, By Nina Martin, ProPublica
More Blog Entries:
Massachusetts Discrimination Lawsuit Results in $7M Victory, Aug. 6, 2013, Massachusetts Discrimination Lawyer Blog