Employee Class Actions Four Years AfterWal-Mart v. Dukes

Abstract

LAWSUITS arising out of the workplace are one of the fastest growing areas of litigation the country today. The U.S. Supreme Court's decision Wal-Mart Stores, Inc. v. Dukes1 was anticipated bring the growth of class actions the employment context under control. In the immediate aftermath of Dukes, commentators predicted that the decision would result significant, drastic reduction employee driven class-action claims,2 and Dukes unquestionably raise[d] the bar for plaintiffs seeking class certification and, accord- ingly, constitute [d] win for because plaintiffs' attorneys now face, much greater obstacles when pursuing class actions.3The limitations to class action claims of discrimination provided Dukes have had far-reaching implications for Title VII claims and class action lawsuits brought under Federal Rule of Civil Procedure 23. But the landmark decision not led to the demise of the class action, or even reduction employment class actions.4 Instead, the employment class action case has merely taken on new face. Following Dukes, employment class actions are now comprised of smaller, regional class and are framed more narrowly, in terms of single policy or practice that applies to the entire class.5This article reviews Dukes and the circuit court employment class certification decisions that have evolved from it and other landmark Supreme Court decisions impacting employment related class actions. While the trend remains favorable to employers, four years after Dukes, plaintiffs attorneys have begun to have success with new tactics. As result, the ultimate legacy of Dukes the employment law context remains uncertain.I. Dukes and its PredecessorsA. General Telephone Co. of Southwest v. Falcon6In the post -Dukes era of class-action jurisprudence and it is nearly impossible to find an opinion or article that does not use the phrase analysis, phrase many lawyers associate with Dukes. Despite the spike popularity of the phrase post -Dukes, it was not introduced by the Court that decision, but was first coined more than twenty years earlier General Telephone Co. of Southwest v. Falcon. In Falcon, the Court held, a Title VII class action, like any other class action, only be certified if the trial court is satisfied, after rigorous that the prerequisites of Rule 23(a) have been satisfied.7In Falcon, like Dukes, the trial court certified an employment discrimination class action. The class included some members who were denied promotion allegedly because they were MexicanAmerican. Other members of the class were denied being hired altogether allegedly because of their race. All members were included the same class based on an the rule that named plaintiff employee complaining of one allegedly discriminatory practice could represent class members complaining of different practice.8 This across the board rule was based on presumption that all the class claims were fairly encompassed within the named plaintiff s claim, satisfying Rule 23(a)(3) typicality. The Supreme Court rejected the rule and its presumption of discrimination. In reversing the Fifth Circuit's affirmation of class certification, the Court made clear that when considering class certification, [ajctual, not presumed, conformance with Rule 23(a) remains ... indispensable,9 and that a Title VII class action, like any other class action, only be certified if the trial court is satisfied, after rigorous that the prerequisites of Rule 23(a) have been satisfied.10 The Court noted that carrying out this mandate it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.11The Court's opinion Falcon signaled the potential for shift the Court's treatment of class certification. Unlike Dukes, Falcon did not have the impact on lower federal courts that its recent decisions indicate the Supreme Court intended, driven largely by concern that courts would be too willing to decide questions of certification with an eye to the underlying merits of the case. …