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United National Antiwar Coalition (UNAC) Conference, Stamford, CT March 25, 2012 Selected audio from plenary sessions and panel discussions

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Wal-Mart Wins, Workers Lose in U.S. Supreme Court Decision Rejecting Class Action Discrimination Lawsuit

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Posted June 22, 2011

Interview with Chris Owens, attorney and executive director of the National Employment Law Project, conducted by Melinda Tuhus

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In a 5 to 4 decision on June 20, the U.S. Supreme Court threw out an 11-year-old class action lawsuit filed against giant retailer Wal-Mart. The lawsuit represented several women plaintiffs claiming gender discrimination and potentially represented 1.5 million female Wal-Mart workers nationwide. The major issue in the case was whether the lawsuit satisfied a requirement of the class-action rules that “there are questions of law or fact common to the class” filing the suit. The conservative majority on the court ruled it did not.

This high court decision raises the bar on what plaintiffs must prove before being allowed to proceed with a class action lawsuit, and will likely make it much more difficult for such class action proceedings to move forward in the future. The ruling is viewed by many legal observers as a gift to Wal-Mart, America’s largest retailer, which faced billions of dollars in claims if it had lost the case.

Between The Lines’ Melinda Tuhus spoke with Chris Owens, an attorney and executive director of the National Employment Law Project. She discusses her views on the court’s Wal-Mart ruling and the obstacles she sees for future groups of individuals seeking legal remedies to discrimination and other injustices.

CHRIS OWENS: Two things were particularly striking, I thought, about the decision. One was that Justice Antonin Scalia very explicitly delved into the merits of the case and he said you can't really decide whether the class has the kind of common interests that are the glue without looking at the merits and the potential for prevailing. That, I thought, was quite surprising. And secondly, although he acknowledged there are situations in which decision-making that is largely subjective and discretionary could be a basis for finding a commonality that would support a class certification, he disparaged every bit of evidence that suggested that in this precise situation where decision-making was discretionary and was largely subjective, he disparaged every bit of evidence that suggested that it in fact had been discriminatory. So I think it makes it much, much harder -- notwithstanding his saying that it would still be possible to certify a class in that situation -- I think it makes it much, much harder to do so and in some sense signals to employers that they are better off not having standards and explicit policies and instead just having -- and not having the kind of transparencies that those kinds of standards and explicit policies provide -- and instead just having a more laissez-faire approach to decision-making. That makes it more likely that they can avoid class certification in the future.

BETWEEN THE LINES: This would affect potential classes of all kinds, right?

CHRIS OWENS: It would affect any basis -- race, gender, ethnicity, age, disability status -- any basis that's covered by any of the civil rights laws, it would affect. I think it's not as clear that it would have the same impact in a shareholder suit, which is the other big area of class action litigation, but it may, it's just uncertain whether it would.

BETWEEN THE LINES: I thought it was interesting that Justice Scalia wrote that one factor in Wal-Mart's favor was that it had written non-discrimination policies in place? How important to you think that was in deciding this case, do you think? Do you think that's a defense, even if the practice is different?

CHRIS OWENS: No, I don't think it's a defense, and I was actually fairly surprised to see that Justice Scalia attached much significance at all to it. You know, it is against the law to discriminate. Most major national corporations, in fact most businesses that have policies at all have written non-discrimination policies. Every business that's a federal contractor has to have a written non-discrimination policy. So I was quite surprised taht the existence of that policy was given the weight that it was given. I think 40 years, almost, after passage of the Civil Rights Act, one would expect that corporations would have written non-discrimination policies.

BETWEEN THE LINES: Christine Owens, going forward, it sounds like these particular women -- all 1.5 million of them -- their option now is to file their own individual discrimination case, which seems unlikely in many cases. Is that what's left to them at this point?

CHRIS OWENS: That's one of the options that's left. Another that the attorneys for the plaintiffs have indicated they're considering -- they may actually pursue these cases on a smaller basis -- either looking at a specific store and trying to certify a class of women who had worked or were working at that store, or all the women employed by Wal-Mart stores within a particular region, if they could identify a specific manager who they alleged had discriminated, or policies that had been applied within that store or within that region that had had a discriminatory effect on all the women in the store within the region. So the attorneys have indicated that they will be looking at smaller class action vehicles as well as a series of individual charges by the women.

BETWEEN THE LINES: How devastating is this to this group's efforts or any group's efforts to win justice?

CHRIS OWENS: I think it imposes an obstacle that will make certain kinds of cases -- certainly large class actions involving challenges to the effects of policies that are not quite as precise -- I think it will make those cases much, much harder to pursue, either as national class actions or frankly, as smaller class actions. It remains to be seen whether this ruling will be extended more broadly and have a larger impact in cases that don't track exactly what the allegations were in the Wal-Mart case. That's one of the things that almost always happens; we have to let a decision play out to assess what its ultimate impact is. It doesn't close the door to class action litigation, but it does mean that plaintiffs will have to be much more precise in terms of challenging specific practices that have a discriminatory effect or that have some genesis in discrimination. It may be hard to identify those sorts of practices because a lot of employers either have or will eliminate those kinds of practices in favor of a more open-ended process.

The ruling seemed to raise the bar on how a group of people could even quality as a class as opposed to having to prove some of those things further down the road.

Visit the New York-based National Employment Law Project website at NELP.org

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