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A Death Blow to Class Action?

Publication Date: 
June 21, 2011
Source: 
The New York Times
Author: 
Ralph Richard Banks

Professor Ralph RIchard Banks took part in the below New York Times discussion on the Walmart v. Dukes ruling and why he believes that by not allowing the case to go forward, the Supreme Court gives too little weight to the principle of group equality in the workplace.

In a decision with broad implications for the future of class action lawsuits, the Supreme Court ruled on Monday that Wal-Mart cannot be sued for discrimination on behalf of as many as 1.5 million current and former female workers.

The case grew out of a lawsuit filed in 2001 by Betty Dukes, a Wal-Mart employee who said that her efforts to advance in the company were deliberately blocked. The court did not rule on whether Wal-Mart had discriminated against women as individuals, only that they could not sue as a class. The justices were unanimous in finding that the plaintiffs' lawyers had improperly sued under a part of the class action rules that was not primarily concerned with monetary claims. But they were divided 5 to 4, along ideological lines, on whether the suit met a requirement of the class action rules that “there are questions of law or fact common to the class.”

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In not allowing the case to go forward, the Supreme Court gives too little weight to the principle of group equality in the workplace. Moreover, the Court’s decision practically precludes compensation for even those women who were denied promotions or pay raises on the basis of their sex. Due to the expense of litigation, individual employees are unlikely to sue even if they could prove discrimination. And untold numbers of women no doubt suffered discrimination that they would not be able to prove.