Supreme Court rolls back class action against Wal-Mart

On June 20 the Supreme Court handed down its decision in Dukes v. Wal-Mart, a class action suit brought on behalf of 1.5 million current and former female employees who claimed that Wal-Mart had a practice of discriminating against its female employees.

There were two issues at stake in the Court’s decision on June 20. First was the plaintiffs’ claim for back pay. The second, broader issue involved the rights of plaintiffs to initiate a class action lawsuit.

On this second issue, the Supreme Court sided with Wal-Mart and held that the plaintiffs did not have enough in common to qualify as a class. This sets a precedent that will limit the use of the class action tool, and the Court’s opinion will severely limit access to justice for workers who have suffered discrimination but are unable or unwilling to bring individual lawsuits.

Although Wal-Mart had no formal discriminatory policy in place, it gave local supervisors discretion to make pay and promotion decisions within broad corporate guidelines, which the plaintiffs argued disproportionately favored men. The plaintiffs sought back pay and asked the Court to order Wal-Mart to end the discriminatory practice.

The Court refused to recognize the women’s evidence of gender-based discrimination as proof that Wal-Mart had a policy of exercising discretion in a discriminatory way. The Court held that the plaintiffs’ claims for back pay should not have been certified for class treatment because each plaintiff would require an individualized judgment of eligibility for back pay, and Wal-Mart was entitled to defend itself against each individual claim.

The decision in Dukes will have profound negative effects on workers, including LGBT workers who are discriminated against on the basis of a federally protected characteristic (such as race, sex, national origin, religion, or disability). Additionally, if the Employment Non-Discrimination Act becomes law, sexual orientation and gender identity will also be protected characteristics and this decision will hinder the ability of harmed employees to band together in a class action case, even if they have strong evidence that an employment practice harms the whole class.

Although individual employees may still bring their own suits claiming discrimination — if they have the time, the resources, and the willpower — Dukes will protect large employers like Wal-Mart from the unique pressure that class action lawsuits provide.