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  • The United States Supreme Court issued a decision this week, Walmart Stores, Inc. v. Dukes, that dramatically alters the landscape of class actions in Federal District Court based upon employment discrimination under Title VII of the Civil Rights Act of 1964, and, in all likelihood, under the California Fair Employment and Housing Act (“FEHA”). Rule 23 of the Federal Rules of Civil Procedure controls certification for class actions. Among other things, it requires that the class present “common issues of law and fact.” In Walmart, the plaintiffs in the class action purported to sue for millions of gender discrimination claims at the same time. The Supreme Court opined that “commonality” requires that the class representative demonstrate that all class members “suffered the same injury,” not merely that that they all suffered a violation of the same provision of law. In this case, the plaintiffs did not allege that Walmart had any express corporate policy against the advancement of women. Rather, plaintiffs purported linchpin as to commonality was the fact that Walmart granted discretion to local managers in hiring and promotion decisions, and that these managers exercised this discretion to unlawfully discriminate against female Walmart employees. The Supreme Court held that this alleged fact actually demonstrated a lack of commonality, as the “crux of the inquiry” as to a Title VII discrimination claim is the “reason for a particular employment decision.” Because the answer to this inquiry would require an individualized inquiry as to each local supervisor (if not each employment decision), the Court opined, such disputes lacked the commonality necessary to proceed as a class action. 

    Because of common origin and legislative purposes, case decisions regarding Title VII are routinely applied by courts faced with FEHA cases. Accordingly, there is good reason to believe that the Walmart case will have profound effects on class litigation of employment discrimination claims in federal court, whether such claims arise under FEHA or under Title VII. 

    Link to supreme court opinion:

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