by Brad Williams, Holland & Hart LLP

The U.S. Supreme Court’s Dukes v. Wal-Mart decision is enormously consequential for employers, particularly those facing “bet-the-company” class actions involving allegations of widespread discrimination. In essence, the Court answered a number of outstanding procedural and interpretive questions involving the federal class-action device in such a way as to make obtaining class certification — or even ultimately recovering at trial — much more difficult for employment discrimination plaintiffs.

Sweeping Rules
Rather than resolve the case on narrow, technical grounds relating to the types of relief available under a Federal Rule of Civil Procedure 23(b)(2) class action or the validity of the Wal-Mart plaintiffs’ specific theory of sex discrimination, the Court laid down sweeping rules that will affect all employment discrimination class actions in the future. For example, class plaintiffs must now unambiguously “prove” all the elements required for class certification under Rule 23 and must show that class certification will help generate common answers — not just common questions — relating to potential discrimination.

read more…

Today, the U.S. Supreme Court ruled in favor of Wal-Mart, the nation’s largest private employer, in a massive lawsuit that has been called the largest employment class action in U.S. history. The class of plaintiffs in Wal-Mart Stores v. Dukes included approximately 1.5 million former and current female Wal-Mart employees seeking injunctive, declaratory, and monetary relief that could have amounted to billions of dollars in back pay.

Although the case involved alleged sex discrimination, the Court wasn’t asked to decide whether the alleged discrimination occurred. Rather, the Court’s decision was limited to whether the suit could be handled as one massive class-action case. In what could be called a unanimous division, the justices all held that the case shouldn’t proceed as a class action; however, they were divided in their reasoning why.

read more…

The U.S. Supreme Court heard oral arguments yesterday in Wal-Mart Stores v. Dukes, a massive lawsuit that has been called the largest employment class action in U.S. history. The class of plaintiffs in this case is estimated to include approximately 1.5 million former and current female Wal-Mart employees seeking monetary relief that could amount to billions of dollars in back pay. Although the case involves alleged sex discrimination, the Court won’t be deciding whether the alleged discrimination occurred but instead will have to determine whether class-action treatment is appropriate.

Wal-Mart’s attorney presented the company’s case first and argued that since the employees’ claims hinge on the company’s delegation of discretion to individual managers throughout the country, the employees can’t meet the cohesion requirements necessary for class-action treatment.

read more…

Today, in a 6-2 decision, the U.S. Supreme Court held that the Fair Labor Standards Act’s (FLSA) antiretaliation provision protects not just written complaints but also oral ones. The Court noted in its opinion that it heard the case because of a conflict in the circuit courts over whether oral complaints were protected.

In Kasten v. Saint-Gobain Performance Plastics Corp., Kevin Kasten sued under the FLSA, asserting that he was fired in retaliation for verbally complaining about his employer’s time-clock placement. The FLSA prohibits employers from retaliating against employees who have “filed any complaint” under the statute. The Seventh U.S. Circuit Court of Appeals ruled for the employer, holding that FLSA complaints must be made in writing because of the “filed” language (i.e., an oral complaint cannot be “filed”).

read more…

Today, in Staub v. Proctor Hospital, the U.S. Supreme Court unanimously held that an employer may be liable under the Uniformed Services Employment and Reemployment Rights Act (USERRA) when the discriminatory actions of an employee who doesn’t make employment decisions influence the employment decisionmaker. More specifically, the Court noted, “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”

In Staub, Vincent Staub, a member of the military reserves, sued his employer after his employment was terminated, alleging he was a victim of antimilitary discrimination in violation of USERRA. Staub based his claim on his supervisors’ alleged antimilitary bias, asserting they influenced the manager who fired him, even though the manager claimed he didn’t take such bias into account. In making his claim, Staub used the theory of cat’s-paw liability, which basically means one person has manipulated another. In an employment law context and specifically in this case, Staub used cat’s-paw liability to claim the employer was liable because his biased supervisors convinced the decision-making manager to take the adverse employment action (discharge) even though the decisionmaker may not have had any bias.

read more…

Yesterday, in Thompson v. North American Stainlessi LP, the U.S. Supreme Court issued an employee-friendly ruling in a third-party (or associational) retaliation case. The Court unanimously held that a man who was fired after his fiancée filed a gender discrimination charge with the Equal Employment Opportunity Commission (EEOC) could sue for retaliation under Title VII of the Civil Rights Act of 1964.

In Thompson, Eric Thompson worked at North American Stainless, LP (NAS) with his then-fiancée, Miriam Regalado, who filed a gender discrimination charge with the EEOC. A few weeks after the EEOC informed NAS of Regalado’s charge, the company terminated Thompson’s employment. Thompson sued NAS, claiming it retaliated against him for his fiancée’s protected activity. The trial court ruled in favor of NAS, and the Sixth U.S. Circuit Court of Appeals agreed, holding that Thompson couldn’t sue under Title VII because he didn’t engage in protected activity.

read more…

Wednesday, in NASA v. Nelson, the U.S. Supreme Court unanimously held that the government didn’t violate federal contract employees’ constitutional rights by using certain background investigations. In this case, contract employees at NASA’s Jet Propulsion Laboratory sued NASA, alleging that the background checks it was using violated their constitutional rights to informational privacy.

The background checks in question required the employees to fill out a standard form that asked about their involvement with illegal drugs and whether they had received any treatment or counseling. The employees also had to sign a release that authorized the government to acquire personal information from employers, schools, and others, and the government sent questionnaires to the employees’ references. The questionnaires asked open-ended questions about the employees’ “honesty or trustworthiness” and whether the references had “adverse information” related to various other matters.

read more…

Today, the U.S. Supreme Court agreed to review what has been called the largest employment class action in U.S. history — Wal-Mart Stores v. Dukes. The class of plaintiffs is estimated to include approximately 1.5 million former and current female Wal-Mart employees seeking monetary relief that could amount to billions of dollars in back pay.

Betty Dukes, a Wal-Mart employee, initially filed the case in federal court on behalf of “certain named plaintiffs and those similarly situated.” The district court certified a class of female employees alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964, and the Ninth U.S. Circuit Court of Appeals affirmed the certification. According to Wal-Mart’s petition to the Supreme Court, the nationwide class “includes every woman employed for any period of time over the past decade, in any of Wal-Mart’s approximately 3,400 separately managed stores, 41 regions, and 400 districts, and who held positions in any of approximately 53 departments and 170 different job classifications.”

read more…

by Daniel C. Stockford

The long-running saga of sexual harassment in the City of Westbrook Fire Department has come to an end with large settlement payments to two female firefighters. Under the settlement agreement, firefighter Kathy Rogers is set to receive about $480,000, while her colleague, Lisa Theberge, will receive about $370,000.

Rogers and Theberge filed complaints against the city with the Maine Human Rights Commission in 2008 alleging more than 100 separate incidents of sexual harassment involving 20 fire department employees. Last October, they filed a lawsuit against the city, the mayor, and the city manager in federal district court in Portland. They alleged that the city failed to take prompt and effective action to address their numerous allegations of sexual harassment and that they suffered retaliation for complaining.

read more…

By Nancy Williams

Last April, the Ninth U.S. Circuit Court of Appeals gave the green light to a nationwide sex discrimination class action against Wal-Mart Stores, Inc., the nation’s largest employer. Unwilling to permit the suit to proceed without a further challenge, Wal-Mart has now petitioned the U.S. Supreme Court to revisit the class certification issue. The Ninth Circuit’s decision had defined a class of up to 1.5 million women who worked at any Wal-Mart in the last 12 years, making the lawsuit the largest potential class action ever pursued under Title VII of the Civil Rights Act of 1964.

Wal-Mart’s petition argues that the case raises important questions under Title VII and affects operations at some 3,400 separately managed stores. Permitting the massive suit to proceed on a class basis risks violating the rights not only of Wal-Mart but also potentially of many class members. The company also urges the Court to consider whether class treatment is the appropriate mechanism for an action that focuses primarily on monetary damages and highly individual claims and defenses.

read more…