Give Women in Wal-Mart v. Dukes Their Day in Court

Equal Justice Society (EJS) joined the National Employment Lawyers Association (NELA) and the Legal Aid Society-Employment Law Center (LAS-ELC) this week to file an amicus brief in the United States Supreme Court case Dukes v. Wal-Mart, the largest civil rights class action lawsuit in U.S. history.

On March 29, the Court will conduct a limited review of the Ninth Circuit’s order upholding class certification in this case, which alleges sex discrimination in Wal-Mart’s pay, promotions, and other employment practices. At issue in Dukes is whether hundreds of thousands of female Wal-Mart employees can collectively seek an injunction and lost pay against the store. Four lower courts, including the Ninth Circuit sitting en banc, have upheld plaintiffs’ class certification, finding that they presented sufficient evidence of gender discrimination, and that Wal-Mart has failed to address this discrimination, despite being well aware of its presence. Now, the Supreme Court will decide whether plaintiffs can finally have their day in court.

The brief takes issue with Wal-Mart’s asserted legal standard, which would require the Court to establish a new and highly restrictive standard for certifying claims involving subjective or discretionary employment practices, such as those at issue in this case. Applying a heightened legal standard to cases that involve subjective decision-making is at odds with core Title VII enforcement principles, and would restrict employees’ ability to seek redress for valid claims involving discriminatory employment policies. Moreover, such a standard would reduce employer incentives to adopt practices that counteract or minimize bias in pay, promotion and other employment decisions. The brief underscores the reality that to deny plaintiffs their day in court would have far-reaching, negative consequences for future victims of systemic and structural race- or gender-based discrimination. Read the PDF of the brief.

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