Weathering Wal-Mart.

• Author: Seiner, Joseph A.
• Position: Pursuing systemic employment discrimination claims following Wal-Mart Stores v. Dukes class action certification failure

ABSTRACT

In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2531 (2011), the Supreme Court held that a proposed class of over a million women that had alleged pay and promotion discrimination against the nation's largest retailer could not be certified. According to the Court, the plaintiffs had failed to establish a common thread in the case sufficient to tie their claims together. The academic response to Wal-Mart was immediate and harsh: the decision will serve as the death knell for mass employment litigation, undermining the workplace protections provided by Title VII of the Civil Rights Act of 1964 (Title VII). This Article embraces the view offered by scholars to date and does not engage the debate over the extent to which Wal-Mart will eviscerate the employment rights of workers.

Instead, this Article attempts to find a solution to the problem created by Wal-Mart. The academic literature has yet to thoroughly explore possible ways to minimize the impact of the Court's decision, and this Article seeks to fill that void in the scholarship. Though the case undoubtedly weakens the ability of Title VII plaintiffs to pursue class action claims, the decision still leaves substantial room for creative approaches to systemic discrimination. This Article offers three such solutions to the problem created by Wal-Mart: the governmental approach, the procedural response, and revised relief. This Article critiques each approach, and explains how they are useful in pursuing workplace cases that involve company-wide discrimination. This Article also situates these proposals in the context of the existing literature.

The thesis of this Article is simple. Taking at face value the argument of scholars that Wal-Mart has created a gaping hole for victims of systemic discrimination, this Article asks what tools are still available for plaintiffs to help fill that hole. Wal-Mart signals a sea change for mass employment litigation. The challenge now will be to find imaginative ways of pursuing systemic discrimination claims. This Article takes on that challenge.

"The Sky Is Falling!"

--Henny Penny, Chicken Little (1)

INTRODUCTION

In the wake of the Supreme Court's controversial decision in Wal-Mart. Stores, Inc. v. Dukes, (2) there has been an outpouring of critics decrying the case as one that will completely eviscerate the employment protections of workers across the country. (3) In Wal-Mart, the Supreme Court held that a class of over a million women that had alleged pay and promotion discrimination against the nation's largest retailer could not be certified under the Federal Rules of Civil Procedure. (4) The Court concluded that the claims of the purported class lacked the commonality necessary for certification. (5)

The academic response to Wal-Mart was swift, and scholars immediately denounced the decision as one that undermines the rights of workplace discrimination victims. (6) This assessment of Wal-Mart is correct, as the class action tool has been critical to the enforcement of employment protections for thousands of workers subjected to discrimination. (7) This Article thus embraces the early literature that has criticized the case as problematic for civil rights litigants. The Court's decision undoubtedly left a void for plaintiffs attempting to vindicate their rights in the face of company-wide discrimination--thus creating the Wal-Mart gap.

While accurately identifying the problem, the academic scholarship has yet to thoroughly explore possible solutions to the Wal-Mart gap. This Article attempts to fill that void in the literature and proposes several ways for plaintiffs to minimize the negative impact of this decision. Wal-Mart is a problem for civil rights litigants, but it is far from a disaster. This paper takes at face value the argument of many scholars that Wal-Mart, has weakened the protections for Title VII victims. (8) Thus, this Article does not engage the ongoing debate over whether--and to what extent--Wal-Mart will undercut employee rights. Instead, this paper responds to a more basic inquiry: Where do we go from here?

Rather than focusing on the various protections Wal-Mart may have taken from plaintiffs, it is useful to explore those rights that still remain. The decision still leaves sufficient room for creative approaches to systemic discrimination, and there are many ways to handle these situations. A significant tool has been lost for plaintiffs, but many avenues to recovery still exist. This Article identifies three broad approaches to addressing systemic discrimination in light of Wal-Mart, the governmental approach, the procedural response, and revised relief. This Article carefully critiques each approach and explains how they may be useful in the context of company-wide discrimination.

The governmental approach suggests that the United States Equal Employment Opportunity Commission (EEOC)--which is not bound by the constraints of the Wal-Mart decision--should become more aggressive in pursuing pervasive discrimination. (9) The governmental approach is particularly appealing as the EEOC is in a unique position to evaluate systemic claims. The EEOC reviews all charges arising from private-sector discrimination and is thus able to quickly identify and correct widespread workplace abuse. (10) The government is also free from the requirements of Federal Rule of Civil Procedure 23, so it can pursue systemic discrimination claims without needing to satisfy the typical class action requirements of commonality, typicality, numerosity, and adequacy of representation. (11) This approach thus offers a class-action-like mechanism that would help enforce the employment rights of victimized workers.

The procedural approach offers a more creative response to Wal-Mart. This approach explores different procedural paths to minimizing the Court's decision. First, offensive non-mutual collateral estoppel can be used effectively by plaintiffs to streamline litigation where multiple workers have sued an employer individually. (12) By resolving common issues in these cases only a single time, the courts and litigants will recognize substantial judicial efficiencies. As common employment policies, managers, and discriminatory facts frequently pervade these cases, collateral estoppel is an often overlooked, yet effective tool for addressing multiple claims in workplace disputes. Similarly, judges may also streamline discrimination claims by consolidating cases that are brought against the same employer. (13) Unlike collateral estoppel, where an issue is resolved in an earlier case for subsequent litigation, consolidation allows important questions to be decided at the same time. (14) By trying multiple claims or issues through a single trial, the courts have significant discretion and authority to simplify employment litigation.

An additional procedural response to Wal-Mart would be to pursue a litigation strategy that attempts to limit the impact of the decision. Wal-Mart can be seen as a unique class action case, involving the single largest workplace dispute brought against the country's biggest private employer. (15) In its decision, the Court repeatedly emphasized both the size of the employer and the enormity of the case that had been brought. (16) An argument can thus be made that the decision should only apply to Wal-Mart itself or to the handful of other corporations that might be similarly situated. By cabining Wal-Mart, the lower courts could limit the scope of the decision to only the largest cases brought against the biggest employers.

A final procedural strategy would be to take Wal-Mart at its word--an approach contrary to any efforts at cabining the decision. Pursuant to this strategy, plaintiffs who might otherwise pursue class action claims would instead file suit individually against the employer. An employer that would typically face a single class action claim would instead find itself defending against hundreds or even thousands of individual cases. (17) By embracing Wal-Mart, plaintiffs could overwhelm employers through carefully orchestrated mass individual litigation.

In addition to the governmental and procedural responses to the Court's decision, this Article advocates taking a renewed look at the relief available to discrimination victims. In light of the Wal-Mart decision, the time has come to re-evaluate the effectiveness of punitive damages under Title VII. Punitive relief serves many of the same goals as class action litigation in workplace disputes--deterrence, retribution, and education. (18) The sting of Wal-Mart could thus be substantially lessened by adopting a more vibrant role for punitive relief in employment cases.

Though the suggestions proposed in this paper cannot completely undo the damage caused by the Court's decision, they can go a long way toward minimizing its impact. With the weight of the decision bearing down on employment discrimination victims, innovative approaches to mass litigation are critical to weakening the blow of the decision. This Article attempts to take a creative look at alternative solutions, but the suggestions it offers are by no means exhaustive. Instead, this Article opens a dialogue on various ways to approach the problem. No solution, however, can completely take the place of the class action mechanism in employment discrimination cases. These solutions can only help to fill the Wal-Mart gap and to help prevent the sky from completely falling on discrimination victims.

This paper begins by providing a brief overview of the Supreme Court's recent decisions impacting mass litigation in the employment discrimination context. (19) Next, this Article offers different approaches to Wal-Mart, specifically exploring possible governmental and procedural responses to the decision. The Article then examines the possibility of revising the relief available in workplace cases, carefully critiquing this approach. (20) This Article con...