Lessons From The Class Action Front - The New "Re-Booted" Dukes Strategy

The Dukes employment discrimination litigation - stemming from the U.S. Supreme Court's seminal ruling this past spring in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) - remains relevant for all employers. The lessons of Dukes are wide and varied for a myriad of issues involving workplace class action litigation. The Dukes litigation is undoubtedly well-known to our readers, as its meaning and implications have been the focus of intense scrutiny. In the SCOTUS case, the district court certified a class in 2004, which was seeking both injunctive relief and back pay, under Rule 23(b)(2). The Supreme Court unanimously held that individualized monetary relief claims such as back pay cannot be certified under Rule 23(b)(2). In the 5-4 portion of the opinion, the Supreme Court held that plaintiffs failed to satisfy the Rule 23(a) commonality requirement, which requires that plaintiffs present significant proof that an employer operated under a general policy of discrimination. The Supreme Court's majority reasoned that plaintiffs' statistical evidence was insufficient to establish that plaintiffs' theory could be proved on a class-wide basis. Plaintiffs had provided regional and national data showing pay disparities, but the majority determined that the regional disparity may be attributable to only a small set of stores, and cannot by itself establish the uniform, store-by-store disparity upon which plaintiffs' theory of commonality depended.

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