In 2004, two of my friends working with Wal-Mart stores were among other 1.6 million former and present-at the time employees who were enjoined in a case where their employer was sued for upholding sex-discriminatory practices. In the case, Wal-Mart was sued for paying less to its female employees fewer promotions and lesser compensation although they attended to similar duties and responsibilities during their work. The evidence brought against Wal-Mart included lower pay from women in the same job groups as men who earned higher, widening wage gap over time for men and women who enter the workforce at the same time and promotions that favoured men. Further, it was noted that women made up 70 percent of Wal-Mart’s workforce. However, there was only a one-third representation of women at the retailer’s managerial levels.
Presiding over this case US district Judge Martin Jenkins said that all the women employees of Wal-Mart enjoined in the case “had enough in common to be treated as a whole”. He further recommended that the certification of the case “should not be construed in any manner as a ruling on the merits or the probable outcome of the case” Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (N.D. Cal. 2004). This was in response to the Wal-Mart petition that a class-size action by its current and former employees with too big in size and scope and hence unmanageable. Wal-Mart argued that the number of women who had been in active employment since 1998 until the filing of the classification case was approximately 1.5 million; a number that not only made the case impossible, but impractical. The judge however stated that the law does not discriminate against large employers and therefore Wal-Mart, just like other employers was liable to the law. This was the first victory for the women in the court case, which was initially filed in 2000 by 54 year old Betty Dukes. Dukes claimed that after six years of work at Wal-Mart, she had received neither the necessary training that would see her rise through the ranks, nor fair treatment when considered to her male counterparts. In addition, she had been demoted by reporting sex discrimination to her manager when she reported that she was facing sex discrimination.
The official recognition for the class action case in the case of “Betty Dukes, Patricia Surgeson, Cleo Page, Deborah Gunter, Karen Williamson, Christine Kwapnoski and Edith Arana (on behalf of themselves and all others similarly situated),” dukes V. Wal-Mart, was given in part and denied in part. Judge Jenkins noted that the Plaintiffs were seeking injunctions, declaratory relief, lost pay and class punitive damages that could apply to the entire class, but were not seeking compensatory damages “on behalf of the class”. The motion filed by Dukes and others sought to represent all women employed in different Wal-Mart stores and departments countrywide starting December 26, 1998 to the time that the court case was filed. A statement released by Wal-Mart stated that the number could be as high as 1.5 million women.
Judge Jenkins approved the plaintiff’s equal-pay motion. As the presiding judge, Jenkins stated that the proposed class in that motion had been certified with respect to liability claims and other forms of requested claims. The Plaintiff’s promotion claim motion was however partially granted and partially denied. In his notes Judge Jenkins, stated that liability and punitive damages for the women in the case can only be judged on an individual basis and when objective data on the same would be obtained. As such, the court partially denied the promotion claim class certification on grounds that the claim was unmanageable, especially considering that no data regarding the promotion claim was available for all class members.
Legal standard followed in Dukes v. Wal-Mart
In Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180, 1136 (9th circ. 2001), the court established that any party which sought a class certification for its case would have to meet four requirements as set by the Federal Rule Civil procedure 23a and demonstrate the same to the court. The four rules in 23a include: 1) the class should be so big that handling each individual case of all members is impracticable; 2) there should be questions fact or law common to the identified class; 3) the claim of the representative plaintiffs must be similar to the claims of the larger class, and 4) the representative plaintiff should have the capacity to adequately protect and fairly represent the concerns of the class. In short, the class represented by the plaintiffs must satisfy commonality, numerosity, adequacy and typicality requirements.
Rule 23b on the other hand requires that one out of the three additional requests be met. In cases that fall in section 2 of Rule 23b, the plaintiff , in this case Dukes and the class would have to assert that the defendant (Wal-Mart) had acted or refused to address to issues affecting the class, therefore making it necessary for the court to make an appropriate injunctive relied of declaratory relief favouring the class.
Analysis
Commonality under rule 23 a
Though this requirement seems to overlap with the functionality requirement under the Supreme Court, commonality refers to the legal issues and relationship facts that applies to all class members. This refers to characteristics that apply to the entire group as a whole. In Wal-Mart’s case, all that was needed was the plaintiff to show that class members shared in gender-based discrimination that was perpetuated by their employer against female employees.
In Dukes v. Wal-Mart it was established that the evidence by the plaintiff could be categorised into: Facts and professional opinions that supported the presence of policies and practices that Wal-Mart had put in place; 2) Statistical evidence drawn by expert to support the gender disparities that could be attributed to discrimination; and 3) anecdotal evidence that the management of Wal-Mart had tolerated discriminatory attitudes. The court concluded that the plaintiff in Dukes v. Wal-Mart had produced enough evidence to satisfy the burden needed to demonstrate commonality.
Numerosity under Rule 23a
Under Staton v. Boeing Co., 327 F. 3d 938, 953 (9th cir. 2003) it was established that a plaintiff does not have to state the exact people in the class. In the case, it was also established that there was no specific minimum capacity of people needed to classify a suit as a class suit. In Arnold v. United Artists theatre circuit, Inc., 158 FRD, 439, 448 (ND. Cal. 1994), it was further established that the practicability or impracticability of a suit would depend on the circumstances and the facts of each case. In Dukes v. Wal-Mart, Wal-Mart did not content that the case had satisfied the Numeoristy factor. The retailer stated that all female employees who had been employed by the firm since 1998 until 2004 had hit the 1.5 million target.
Typicality Requirement under 23a
The typicality requirement states that “the named plaintiffs should be members of the class they represent and should possess the same interest in addition to having suffered the same injury as other class members.” Dukes v. Wal-Mart
Wal-Mart argued that the representatives of the class had worked in stores and therefore did not satisfy the “typicality requirement” because they occupied “lower level salaried in-store management positions” and therefore could not represent the range of managers who were high ranking than them. This too was shot down with arguments that “Typicality is not defeated because of the varied promotional opportunities at issues or the differing qualifications of the class members represented by the plaintiff.” Paxton v. Union National bank, 688 F. 2d 552, 562 (8th circ. 1982).
Wal-Mart further stated that each named plaintiff had an “individual-specific” case thus meaning that the claims were not typical of the class that the plaintiffs sought to represent. This too was shot down; when the court argued that it was well within the expectations of the court for all cases to have some individual-specificity characteristics. According to the court, this did not defeat typicality. In Adams v. Pinole Point Steel Co., WL 515347 (ND Cal. May 18, 1994), it w as established that the court should consider the named plaintiffs were exposed to injury from the discriminatory practices of their employer in the same manner that the class members they seek to represent did, and whether the nature of discrimination in the workplace injured members in a similar fashion. As such, the court ruled that Wal-Mart had been found to have a subjective decision-making culture that was uniform and gender specific and therefore the individual employees regardless of the stores they worked in or their different pay levels were exposed to a common discriminatory practice.
Adequacy of representation requirement under rule 23a
Under this rule, the law requires that the named plaintiffs/ representatives have no conflicting interests with the class members and that the plaintiff be adequately represented by competent counsel. Wal-Mart’s argument was that there existed conflicting interests among the class members, the named plaintiffs and decision-making agents at the stores. However, this was dismissed on grounds that Wal-Mart had failed to identify a “substantive issue for which there was a conflict of interest among sets of employees represented by the named plaintiffs.” Dukes v. Wal-Mart
Rule 23b (2)
Wal-Mart claimed that the punitive damages that were included in the claim rendered the case unsuitable to be certified as a class case, claiming that the sheer size of the class made the case unmanageable. The court however noted that the plaintiffs had foregone any compensatory damages and instead sought punitive damages in order to punish Wal-mart for the “reckless disregard of women’s right and the equal employment opportunities” Dukes v. Wal-Mart. at 52
Borrowing from Molski v. Gleich, 318 f. 3d 937 (9th cir.2003), the court had the discretion to examine facts of the case in order to find out the intent of each of the named plaintiff in bringing the litigation. It was thus established that Betty Dukes was motivated by “a need to see the employment practices at Wal-Mart scrapped, so that women can obtain management positions as well as equal pay for comparable work. Women also need to access the mentorship and training programs necessary to advance in the company easily” ibid
In the ruling, the court stated that it was satisfied that the named plaintiffs had a primary goal of bringing equitable relief to Wal-Mart female employees, and only had the punitive damages claim only as their secondary goal.
References
Adams v. Pinole Point Steel Co., WL 515347 (ND Cal. 1994) Arnold v. United Artists theatre circuit, Inc., 158 FRD, 439, 448.
Bennet-Alexander, D. & Hartman, L. (Ed.). (2008) Employment Law for Business. New York: McGraw-Hill/Irwin.
Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (N.D. Cal. 2004) Molski v. Gleich, 318 f. 3d 937 (2003)
Paxton v. Union National bank, 688 F. 2d 552, 562 (8th circ. 1982).
Stanton v. Boeing Co., 327 F. 3d 938, 953 (9th cir. 2003)
Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180, 1136 (9th circ. 2001)