The Entitled Opinion - A New Blog Column for Paralegals

   Woman arms folded gi  Over here at The Estrin Report, we love new ideas.  That's why we are launching The Entitled Opinion - a new sporadic column featuring guest bloggers with definite opinions.  We encourage you to write in.  Tell us what's on your mind; what peeves you have; what success stories you've witnessed; changes you'd like to see and observations you'd like known.

    To kick things off, we introduce you to Sydney Muray, paralegal, today's guest blogger:

Wal-Mart v. Dukes was an important Supreme Court case that dealt with class action lawsuits, appealing to lawyers and paralegals alike. The original plaintiff, Betty Dukes, sued Wal-Mart for sexual discrimination and joined in her lawsuit all 1.6 million women who have worked for Wal-Mart since 1998. The Court's rejection of the class in its current form was an unanimous decision. However, its decision to reject the class in any form was split five to four along ideological lines with the conservative justices in the majority. That portion of the opinion was contrary to basic notions of justice, and will have far-reaching ramifications for gender discrimination lawsuits.

     The portion of the suit that resulted in a unanimous decision concerned a technicality regarding Rule 23 of the Federal Rules of Civil Procedure. All of the justices agreed that the rule did not allow the class in this case to pursue monetary damages. This was largely uncontroversial and had no major effect on the case because the class action was actually disposed of by the other portion of the ruling. That part of the decision constitutes the real crux of this issue: whether a massive class of litigants can join together to sue a corporation.

     Both parts of the opinion were written by Justice Scalia, a conservative, who was joined by all of his conservative colleagues and none of his liberal counterparts. That portion of the decision is particularly egregious because it has the effect of setting precedent that will substantially limit class action lawsuits in the future. There are two fatal flaws in the decision Justice Scalia handed down.

     The first flaw with the ruling is that it obfuscates the reality of the situation of these female employees. Justice Scalia denied the class certification based upon the notion that the class did not meet the "commonality" requirement for class action lawsuits. However, as Justice Ginsburg aptly notes in her dissent, the Rule “does not require that all questions of law or fact raised in the litigation be common...” This means, in general, that the circumstances of the female employees don't have to be exactly the same, just that they need to have something relevant in common. The commonality requirement was met because these women showed in their arguments that: 1. they are all women; and 2. Wal-Mart has been discriminating against women, causing them financial harm. As such, these women are entitled to relief as a class.

     Justice Ginsburg goes on to note facts illustrative of the actual harm that the female litigants have suffered. She points out that "Women fill 70 percent of the hourly jobs in the retailer’s stores but make up only '33 percent of management employees.'" She also notes that “[T]he higher one looks in the organization the lower the percentage of women.” The statistics presented by the women, largely uncontested by Wal-Mart, also indicate that women in every region are paid substantially less than their male counterparts.

     Statistics like these are damning for respondents in a sexual discrimination suit, and if justice had been exercised in this case the majority of the court should have taken these facts into consideration. Instead, Justice Scalia opted to take advantage of a technicality and assert that the class didn't meet "commonality" requirements. Undeniably, the class was massive. 1.6 million people is no small number, but the sheer size of the class is no legitimate excuse to dismiss a case. The court rejected the class certification simply because it was massive, claiming that the litigants didn't have enough in common.

    A Bloomberg article sides with Scalia's ruling in this case, saying that Wal-Mart turned the statistics around on the plaintiffs, noting that they earn more at Wal-Mart from an earnings ratio perspective than their female counterparts in U.S. society at large. However, that is not a sufficient justification for dismissing this case. Demonstrating they do better at Wal-Mart does not prove that Wal-Mart is complying with the law of not discriminating against its employees.

     The second, and perhaps even more important issue with the majority ruling is the effect that it will have on class action lawsuits in general. The case will make it more difficult for large classes who have been harmed by a common respondent to join together in the future. Class actions are important because they offer a legal remedy for individuals without the financial resources to bring a lawsuit on their own. The plaintiffs in this case are a perfect example of those who need a class action to seek justice: women who are working at lower-paying hourly jobs at Wal-Mart than their male co-workers.

     Hiring legal counsel can be very expensive, and lawsuits are often long, drawn-out affairs. Low-income individuals trying to support families do not have the time or money to pursue litigation by themselves, and class action lawsuits allow them to join with large groups and be represented in absentia, giving them the opportunity to be heard and seek relief without personal expenditure. After this ruling, these women and many others like them may not be able to seek relief for the discrimination against them.

     This ruling is one that will have negative ramifications for class action plaintiffs in the future. It further harmed the women involved in that they received no recompense for the discrimination they experienced. Unfortunately, it also sets a precedent that will allow Wal-Mart to continue to ignore systemic discrimination in its organization.

 Guest blogs express the opinion of the author and not necessarily the views of The Estrin Report.

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