It’s been little more than two years since the U.S. Supreme Court shot down a massive class action gender discrimination lawsuit on behalf of thousands of women who worked for retail giant Wal-Mart.
Since then, the Wal-Mart v. Dukes decision has been cited more than 1,200 times by state and federal courts handling similar types of complaints, some against retailers, such as Family Dollar Stores, others against government contractors, such as Lockheed Martin Corp. and even in the publishing industry, with one large case involving Hearst Corp.
It’s impossible to deny the impact this pro-business decision had on discrimination litigation. However, where it has primarily hit the hardest has been with regard to larger, class-action cases. That’s because the primary issue in the Dukes decision was not whether Wal-Mart had discriminated against women, as alleged. Rather, the court was charged with determining whether members of the class had enough in common to allow the case to move forward.
The women had claimed that has a class, they had been systematically underpaid and under-promoted by company administrators across the country. There was ample evidence of this. In one case, for example, a mother of five in her early 50s had 10 years of retail experience when she began working with a Duarte, CA branch of the company back in the mid-1990s for $7 hourly. Over the span of six years, she received glowing reviews, yet was not promoted above a low-level support manager position. When she began pressing her bosses for something more, her hours were cut and she was ultimately forced to resign.
However, in writing for the majority, Justice Antonin Scalia said it was not reasonable that a company as large as Wal-Mart could be held responsible for the decisions of thousands of local managers acting at their own discretion – even if those decisions and/or actions had a negative impact overall on female workers. So in the end, those workers didn’t have enough in common to justify a class action, the court decided.
There is no denying that this was considered a significant blow to women and minorities. Non-profit journalism provider ProPublica reported that prior to the Dukes ruling, the top 10 employee discrimination settlements were tallied at nearly $350 million total. In the first year after that decision, however, it had dropped by nearly 90 percent, down to $45 million.
This is not to say there are not still victories or that it is no longer worth filing a case. Far from it. Many cases – even class actions – are still being won. For example, just this month, Bank of America/Merill Lynch settled a sex discrimination case for nearly $40 million. A week before that, Merill Lynch had agreed to pay another $160 million for the discrimination of African American brokers.
But we’re inevitably seeing fewer class action cases. The majority of successful gender bias lawsuits are now going to come from individual actions. In some ways, that can put plaintiffs at a disadvantage because there is always strength in numbers. Having more than one plaintiff can help show a pattern of illegal, discriminate action.
However, there are many cases that are strong enough to stand on their own. We are staunchly committed to aggressively fighting for the rights of workers who have faced discrimination in all forms.
Costa Mesa employment lawsuits can be filed with the help of the Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 949.375.4734.
The Impact and Echoes of the Wal-Mart Discrimination Case, Sept. 27, 2013, By Nina Martin, ProPublica
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California Wage and Hour Lawsuit Nets $2.2 Million Settlement, Sept. 25, 2013, Costa Mesa Employment Discrimination Lawyer Blog