The Supreme Court heard oral argument Tuesday on a challenge to the certification of a class-action lawsuit on behalf of female employees against the giant retailer Wal-Mart. In the case Wal-Mart Stores v. Dukes, Wal-Mart is challenging a 9th Circuit certification of a class of all female employees, arguing it violates due process and FRCP 23(b)(2) by creating an expansive class without cohesion whose claims are dissimilar and conflict with one another.
During oral argument, justices seemed to split along gender lines, with Justices Ginsberg, Kagan, and Sotomayor questioning Wal-Mart’s counsel most closely, while Justices Scalia and Kennedy concentrated their questions on counsel representing the women employees. The suit began in 2000, when Wal-Mart employee Betty Dukes sued the company for violations of Title VII of the Civil Rights Act of 1964. Plaintiffs seek to represent a possible 1.5 million women who have worked for Wal-Mart since December 1998, arguing Wal-Mart denied women promotions and higher pay.
No E.R.A.? no case.
Thank Phyllis Schafly.
The existence or not of the ERA, as legislative statue, wouldn’t have much bearing on class action.
Class action would be tough in this case for several reasons, but chiefly the difficulty of determining fault over hundreds of thousands of individuals could deny fairness to either party.
As an individual title 7 claim, depending on the facts, the case could easily go forward.
As a huge class action, it’s likely to fail.
This is an important case. We are all waiting to see how the Supreme Court treats class actions in the context of gender discrimination.
You can read the court transcript here: http://bit.ly/fvpoZu