The Supreme Court has ruled this morning that the class-action suit brought by approximately 1.5 million female workers against Walmart cannot go forward. According to CNN, the ruling is not a ruling on the merits of the case, but simply a decision that “sweeping class-action status that could potentially involve hundreds of thousands of current and former female workers was simply too large.” Daniel Fisher here explains in a bit more detail that the court ruled that the case failed the test of commonality; that is, there was insufficient evidence that all members of the class were ill-treated specifically because of gender-bias.
Now, I understand that this is a huge case, and I would not envy anyone the job of sorting through distributions of any settlement or remuneration. However, it seems to me that precisely because of the huge number of people that the case impacts, its merits have to be heard. Perhaps this particular class action suit is not the right mechanism for that, but it seems essential that some avenue to evaluate these claims be found. I’m particularly concerned by the implication that when too many workers together demand consideration of alleged injustices against them, the claims are too large to be considered. Doesn’t this imply that widespread discrimination is not discrimination? If a company like Walmart ends up being untouchable simply because of its size, there is far too much room for injustice.
And, by the way, Walmart is far from alone in this. In fact, according to this article at Bloomberg, 20 other companies with an interest in class-action gender-bias legislation supported Walmart at the Supreme Court. If the big companies are looking out for one another in this, who is looking out for the workers?
This important thing to keep in mind on this is that the ruling doesn’t mean that people can’t sue Walmart for gender bias, even in groups, it means that a law firm cannot sue Walmart on behalf of all of the female employees it currently has or has had in the past, on the basis that all or most of them have suffered bias and thus all of them should be compensated.
There’s no limitation to the number of workers who would separately or as a group allege gender bias on Walmart’s part, it’s just that they people who believe that they were discriminated against have to sue on their own behalf, not on the behalf of all women who’ve worked for the company as a class.
I think D.C. has it right.
A quick (such as is possible with such things) look at the Court’s ruling reveals:
I. A very short (42 page) opinion, including concurrence and dissent. Not noteworthy in and of itself, except to say that the ruling was not controversial enough to attract multiple dissents and splintering.
II. The (3) representative plaintiffs claimed that “the discrimination to which they have been subjected is common to all Wal-Mart’s female employees.”
3. Federal Rules of Civil Procedure 23 – http://www.law.cornell.edu/rules/frcp/Rule23.htm – controls, which requires first that the party seeking certification as a class demonstrate (from 23(a)):
“1. The class is so numerous that joinder of all members is impracticable,
2. There are questions of law or fact common to the class
3. The claims or defenses of the representative par-ties are typical of the claims or defenses of the class, and
4. The representative parties will fairly and adequately protect the interests of the class”
Then the party seeking cert. must also prove one more part of 23, from section (b), of which the plaintiffs chose 23(b)(2): “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole”.
III. The court noted that “The class action is an exception to the usual rule thatlitigation is conducted by and on behalf of the individual named parties only.. In order to justify a departure from that rule, a class representative must be part of the class and possess the same interest and suffer the same injury as the class members. Rule 23(a) ensures that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate. The Rule’s four requirements—numerosity, commonality, typicality, and adequate representation—effectively limit the class claims to those fairly encompassed by the named plain-tiff’s claims.”
IV. The court notes that commonality is at the crux of this case. For that to exist, “This does not mean merely that they have all suffered a violation of the same provision of law. Title VII, for example, can be violated in many ways—by intentional discrimination, or by hiring and promotion criteria that result in disparate impact, and by the use of these practices on the part of many different superiors in a single company. Quite obviously,the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate-impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for ex-ample, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”
V. The court then goes on to discuss what is required of commonality and how the plaintiffs might show it.
“Conceptually, there is a wide gap between (a) an individual’s claim that he has been denied a promotion [or higher pay] on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual’s claim and the class claim will share common questions of law or fact and that the individual’s claim will be typical of the class claims. Falcon suggested two ways in which that conceptual gap might be bridged. First, if the employer used a biased testing procedure to evaluate both applicants for employment and incumbent employees, a class action on behalf of every applicant or employee who might have been prejudiced by the test clearly would satisfy the commonality and typicality requirements of Rule 23(a).Second, significant proof that an employer operated under a general policy of discrimination conceivably could justify a class of both applicants and employees if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decisionmaking processes.” We think that statement precisely describes respondents’ burden in this case. The first manner of bridging the gap obviously has no application here; Wal-Mart has no testing procedure or other companywide evaluation method that can be charged with bias. The whole point of permitting discretionary decisionmaking is to avoid evaluating employees under a common standard.
The second manner of bridging the gap requires significant proof that Wal-Mart operated under a general policy of discrimination. That is entirely absent here.”
My own feeling is that plaintiff’s attorneys were very excited about taking a huge case against Wal-Mart and winning a mint. Problem is, they brought in so many people that only the broadest of threads could be seen to link all of them, absent some sort of legal thread that linked so many that the evidence was undeniable.