Employee Class Actions Four Years After Wal-Mart v. Dukes

Abstract

LAWSUITS arising out of the workplace are one of the fastest growing areas of litigation in the country today. The U.S. Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes1 was anticipated bring the growth of class actions in the employment context under control. In the immediate aftermath of Dukes, commentators predicted that the decision would result in a significant, drastic reduction in employee driven class-action claims,2 and Dukes unquestionably " raise[d] the bar for plaintiffs seeking class certification and, accord- ingly, constitute [d] a win for employers," because plaintiffs' attorneys now face, "much greater obstacles when pursuing class actions."3The limitations to class action claims of discrimination provided in 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 "has not led to the demise of the class action, or even a reduction in employment class actions."4 Instead, the employment class action case has merely taken on a new face. Following Dukes, employment class actions are now comprised of a smaller, regional class and are framed more narrowly, "in terms of a 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 a result, the ultimate legacy of Dukes in 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 analysis, it is nearly impossible to find an opinion or article that does not use the phrase "rigorous analysis," a phrase many lawyers associate with Dukes. Despite the spike in popularity of the phrase post -Dukes, it was not introduced by the Court in that decision, but was first coined more than twenty years earlier in General Telephone Co. of Southwest v. Falcon. In Falcon, the Court held, "a Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, 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 in the same class based on an "across the board" rule that a named plaintiff employee complaining of one allegedly discriminatory practice could represent class members complaining of a different practice.8 This across the board rule was based on a 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, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied."10 The Court noted that in 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 in Falcon signaled the potential for a shift in 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 a concern that courts would be too willing to decide questions of certification with an eye to the underlying merits of the case. …