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The Employment Discrimination Class Action Is Alive and Well
Just when some thought it might be safe to presume that class action discrimination lawsuits under Title VII of the Civil Rights Act and the Age Discrimination in Employment Act were on the wane, several recent decisions involving the huge retailer, Wal-Mart, Inc., should give many employers pause for thought. In February 2007, the Ninth Circuit Court of Appeals upheld the lower court decision that had certified a nationwide class of approximately 1.6 million current and former female employees who had worked at one or more of Wal-Mart's 3,400 stores throughout the United States. Dukes v. Wal-Mart Stores, Inc., 474 F.3d 1214 (9th Cir. 2007). On Dec.11, 2007, the U.S. Court of Appeals for the Ninth Circuit issued a modified opinion, clearing the way for a reduction of the number of class members, while also clarifying its holding approving class certification. Dukes, Case No. 04-16688.
Moreover, on May 16, 2007, the United States District Court for the Eastern District of Arkansas certified a class of black truck drivers who either were rejected for jobs from Wal-Mart or were deterred from applying because of the company's 'word-of-mouth' recruitment policy. Nelson v. Wal-Mart Stores, Inc., Nos. 2:04-CV00171, 2007 WL 1443114 (E.D. Ark. May 16, 2007).
The recent prevalence of class actions in employment discrimination cases is surprising to some. Indeed, the passage of the 1991 Civil Rights Act was viewed by many as a step toward stifling class action litigation of cases alleging intentional discrimination. In 1991, buttressed by a belief that additional remedies under Federal Law were needed to deter intentional discrimination in the workplace, Congress made punitive and compensatory damages available to plaintiffs claiming intentional discrimination. See 42 U.S.C. ' 1981a(a)(1). In addition, Congress provided that either party to a claim is entitled to request a jury trial. See 42 U.S.C. ' 1981a (c). Both the additional damages provisions and the entitlement to request a jury trial bring into question the continued viability of the class action as a vehicle for alleging intentional discrimination.
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