Tuesday, May 27, 2014
As I mentioned in my initial blog, I will be writing short summaries here of what I view as the four best ways for plaintiffs to act collectively following the Supreme Court's Wal-Mart decision. I am not seeking to criticize the case (though I do disagree with the decision), but ask more practically how plaintiffs should proceed in light of this opinion.
Perhaps the most obvious approach, and the one that I will discuss here today, is for the government (specifically the EEOC) to become more heavily involved in pursuing systemic claims. Unlike private plaintiffs, it has been well established that the EEOC is not subject to the commonality requirements of Federal Rule of Civil Procedure 23. Thus, unlike other litigants, the Wal-Mart case is largely inapplicable to the Commission. The government is thus free to pursue systemic claims without any fear of the case being dismissed on commonality grounds.
This puts the EEOC in the best position to enforce federal employment discrimination law that occurs on a widespread basis. I thus encourage the agency (and in the interest of full disclosure, my prior employer) to pursue more class action type claims as part of its enforcement mission. This approach comes with substantial cost. The EEOC is a historically underfunded agency. Diverting resources from individual cases to systemic claims may mean that many individuals who would otherwise have their claims taken by the EEOC will be required to seek private counsel elsewhere. Class-action cases are frequently complex and time-consuming to pursue. Nonetheless, the EEOC is now in the best position to pursue these claims. And, the agency will have an opportunity to consider the value of systemic cases early in the process – – in its role as an administrative agency. It will thus see these cases when the charge of discrimination is initially filed.
Please feel free to share your thoughts on the EEOC's role in class-action claims in the comments below. I will continue shortly with a discussion of the potential use of various procedural techniques to help circumvent the Court's decision.