On June 20, 2011 the United States Supreme Court released its
reasons in Wal-Mart Stores Inc. v. Dukes, a landmark
decision overturning two lower court decisions to certify an
employment discrimination claim against Wal-Mart.
The representative plaintiffs represented 1.5 million current or
former female Wal-Mart employees employed by Wal-Mart from 1998
onwards. They were alleging that the company discriminated against
them on the basis of their gender by denying them equal pay or
promotions in violation of the U.S. Civil RightsAct. If the plaintiffs had been successful,
Wal-Mart could have faced billions of dollars in potential
Although the plaintiffs conceded that Wal-Mart did not have an
express corporate policy against the advancement of women, they
claimed that Wal-Mart's policy of giving their local
managers' discretion over pay and promotions favoured men
Each of the three representative plaintiffs had different
complaints of discrimination. One plaintiff, Betty Dukes, started
as a cashier and received a promotion to customer service
manager. After a series of disciplinary violations, she
was demoted back to cashier and then to greeter. She
claimed that the demotions were in retaliation for invoking
Wal-Mart's internal complaint procedures.
Christine Kwapnoski claimed that a male manager yelled at her
frequently and screamed at female employees, but not at
men. She claimed that the manager in question "told
her to 'doll up', to wear some makeup, and to dress a
The final representative plaintiff, Edith Arana, claimed that
she approached her store manager about management training on more
than one occasion but was "brushed off." She
concluded that that she was being denied an opportunity for
advancement because of her gender. She initiated internal
complaint procedures, whereupon she was told to apply to the
district manager if she thought she was being treated unfairly by
her store manager. She decided against that and was
eventually fired for failing to comply with Wal-Mart's
In refusing to certify the class action, the Court found that
the numerous individual claims of discrimination did not meet the
commonality requirement for class actions. In effect, each
claim required its own analysis. Justice Scalia, writing
for the court, stated:
[The] respondents wish to sue for millions of employment
decisions at once. Without some glue holding the alleged
reasons for all those decisions together, it will be
impossible to say that examination of all the class
members'claims for relief will produce a common answer to
the crucial question why was I disfavored.
The Court did not close the door on discrimination claims
altogether, but certainly signalled that it would be much more
difficult to try discrimination claims as a class action unless the
plaintiffs show commonality - that there are questions of law or
fact common to the class. This could include challenging
common testing standards applied to all employees which
systemically discriminate against individuals or showing
"significant proof" that an employer operated under a
general standard of discrimination.
Ontario's class action legislation also has a "common
issues" requirement, which must be met before a class action
can be certified.Therefore, it would be difficult to certify a
proposed class action with overly individualized claims.
Retailers and other large employers should therefore take note
that they could still be vulnerable to individual claims brought by
employees or former employees. Ontario's Human Rights
Code also contains a civil remedy provision, which allows
individuals to bring actions for discrimination if brought together
with other causes of action. Employers should therefore
regularly review their internal policies and promotion
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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