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Last week, on the one-year anniversary of Wal-Mart Stores
v. Dukes, 131 S.Ct. 2541 (2011), a group of Democratic lawmakers
proposed companion House and Senate bills that would repeal
Dukes' requirement that workers seeking class treatment of
employment discrimination claims demonstrate class-wide
discrimination policies or practices. The stated purpose of
the "Equal Employment Opportunity Restoration Act of
2012" is to "restore employees' ability to challenge,
as a group, discriminatory employment practices, including
subjective employment practices." In fact, the Act would
not simply restore employees' ability to mount group
challenges, but would expand their ability to do so beyond any
procedures existing before the Supreme Court handed down
Dukes.
Ordinarily, plaintiffs have based class claims of discrimination
on policies or practices that are company-wide and affect employees
in a common manner. At the times of the events at issue in
Dukes, Wal-Mart had company-wide policies that prohibited
discrimination, and the Dukes plaintiffs took a different
approach. The centralized policy they challenged was a policy
that decentralized hiring and promotion decisions, leaving such
decisions to the discretion of individual supervisors and store
managers. Not surprisingly, a majority of the Supreme Court
held that the delegation to thousands of individual supervisors of
employment decisions affecting more than one million female
employees at thousands of locations across the country precluded a
finding of commonality.
To encourage class actions in employment cases, the proposed Act
would effectively nullify Dukes and create a very liberal standard
for the pursuit of so-called "group actions" under Title
VII, the ADA, the Rehabilitation Act of 1973 and the Genetic
Nondiscrimination Act. The "group action"
option is essentially a stripped down version of Rule 23 that would
eliminate entirely the need to prove the existence of common issues
of law or fact or that such common issues predominate over
individual issues. The Act would essentially leave intact all
other provisions of Rule 23 for group actions and, in place of
commonality and predominance, would add the requirement that
"the members of the group are, or have been, subject to an
employment practice that has adversely affected or is adversely
affecting a significant portion of the group's members."
The bill would lower the standard of proof that the elements for
certification have been met, providing that an individual can sue
on behalf of a group simply by showing "by a reasonable
inference" that she meets these truncated Rule 23
requirements.
The proposed Act would allow these "group actions"
regardless of whether the group is challenging an objective or a
subjective employment practice, and would therefore allow class
treatment even where the challenged employment practice resulted
from the exercise of many different supervisors'
discretion. It also would allow a court to consider, in
opposition to certification of the group action, an employer's
written non-discrimination policy "only to the extent that the
employer demonstrates that the policy has been consistently and
effectively used to prevent and, where necessary, promptly correct
discrimination against the group." In cases where
employers have been found liable, the law would allow the court to
deny a remedy to an individual member of the group action only
where the employer proved that the member would have been denied
whatever employment opportunity or benefit is the subject of the
action, absent any statutory violation. Finally, the Act
would expressly leave untouched the standards governing class
certification in cases that do not involve the covered employment
discrimination statutes.
By removing any required showing of commonality and creating a
new, less restrictive collective-action avenue for certain
employment discrimination actions, the proposed Equal Employment
Opportunity Restoration Act of 2012 goes far beyond simply
reversing the impact of Dukes, and would make it easier than ever
before for employees and their attorneys to assert discrimination
claims on behalf of large groups of allegedly affected
individuals. Such an unprecedented and sweeping
expansion of class procedures would subject employers to enormous
risks of liability to unaffected and uninjured employees, and may
well run afoul of their due process rights to defend individual
claims. At bottom, the bill represents an over-reaction to an
unpopular Supreme Court decision that threatens to undermine the
balancing of plaintiffs' and defendants' rights embedded in
Rule 23. We think it unlikely that this bill will pass, but
employers should expect continued efforts to challenge the effects
of Dukes.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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