Duane Morris Class Action Review - 2023 - Report - Page 173
CHAPTER 10
Employment Discrimination Class Actions
I.
Executive Summary
Class action litigation in the employment discrimination space remains an area of key
focus of skilled class action litigators in the plaintiffs’ bar.
Class actions challenging employment policies and practices has a robust history since
passage of the Civil Rights Act of 1964. For decades, federal courts routinely granted
class certification in nationwide employment discrimination class actions, which often
spiked settlements that entailed huge pay-outs and across-the-board changes to HR
systems. In turn, significant changes in the workplaces of Corporate America resulted
from class action precedents, huge settlements, and injunctive relief orders.
This changed in large part over a decade ago when the U.S. Supreme Court decided
Wal-Mart Stores, Inc., et al. v. Dukes, et al., 564 U.S. 338 (2011). That decision
reversed a class certification order in a pay and promotions lawsuit involving 1.5 million
class members who asserted claims of sex discrimination. In so ruling, the Supreme
Court tightened the legal requirements for securing class certification. It forced the
plaintiffs’ bar to adjust their strategies on how to prosecute class actions. Conversely, it
fueled new defense strategies for opposing class certification motions.
At its core, the Supreme Court’s ruling in Wal-Mart had several ramifications. It
determined that Rule 23(b)(2) could not be used to recover individualized monetary
relief for class members, established a heightened standard for the Rule 23(a)(2)
commonality requirement, and rejected the misreading of prior Supreme Court
precedents on Rule 23 burdens of proof that led lower federal courts to relax those
burdens.
Under Wal-Mart, a “common” issue is one that is “capable of class-wide resolution which means that determination of its truth or falsity will resolve an issue that is central
to the validity of each of the claims in one stroke.” Id. at 342. As a result, Wal-Mart
made employment discrimination class actions more difficult to certify. Gone were the
days when nationwide class actions challenging hiring, compensation, and promotion
policies of large corporations inevitably ended with broad-scale “across-the-board”
certification orders.
The plaintiffs’ class action bar is nothing if not innovative and resourceful. Their
“litigation playbook” is in a state of constant flux in order to find strategies that maximize
the potential to secure class certification. Over the past decade, they have rebooted
their approaches to the prosecution of class theories in employment discrimination
lawsuits to work around the standards in Wal-Mart. More often than not, their class
claims are now scaled-down in order to maximize the chance of securing class
certification.
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Duane Morris Class Action Review – 2023
