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Rachel Geman Participating In Seminar On Dukes Decision
June 27, 2011
On June 30, 2011, Lieff Cabraser attorney Rachel Geman will be among the leading class-action practitioners participating in a tele-seminar on how Wal-Mart v. Dukes will affect class action practice.
As background, in Wal-Mart v. Dukes, the Supreme Court held that female employees at Wal-Mart could not bind together in a nationwide, multi-year class action involving pay and promotion decisions. The Dukes Court found, 9-0, that claims for backpay were inconsistent with a mandatory, no opt-out class. However, the Court was sharply divided on the other primary holding in Dukes:
While upholding subjective decision-making as a basis for a discrimination claim, the 5-member majority found that the Dukes' plaintiffs did not identify a "common mode of exercising discretion that pervade[d] the entire company." Justice Ginsburg wrote a robust dissent that disagreed with the holding that the female employees' discrimination claims did present common issues of fact or law, as Rule 23 requires.
As Rachel Geman notes:
Dukes is a significant decision, but is likely to be far more narrow in scope than the first burst of media frenzy has suggested. Prior to Dukes, Supreme Court Title VII cases shared Dukes' focus, if not always its tone, on how to handle proof issues for individual employees in the context of a larger pattern and practice case. Following Dukes, a least one court has already certified an employment class action.
We believe that claims attacking unfair, unvalidated, discriminatory tests or hiring or selection criteria should be largely unaffected with respect to proving liability. Within the four corners of subjective decision-making cases, plaintiffs in specifically-defined groups--such as women who can identify a common mode of exercising discretion or employees in one regional area or job group--should be able to enjoy the important efficiencies of a class action, especially given the range of manageability tools available to courts.
Unfortunately, employment discrimination still happens -- and lawsuits to redress it and seek a fair workplace are not going away.