Monday, January 10, 2011

Waterstone on the Future of Employment Class Actions

MichaelWaterstone Michael Waterstone (Loyola, L.A.) has an interesting post on Wal-Mart v. Dukes on the Loyola Law School faculty blog. Here are some of his thoughts:

[The question of whether a class this big can be maintained] could be transformative within class action law. If plaintiffs are able to demonstrate company-wide policies based on this type of evidence, it could open up the door to larger class actions, and not just necessarily limited to gender discrimination. In the area of disability law, with which I have the greatest familiarity, courts have been quite reluctant to certify employment discrimination class actions. Part of this is based on the view that people with various disabilities have individualized conditions and employment experiences that cannot be aggregated under the commonality and typicality prongs of the class action analysis. Although Dukes does not directly address this, the recent American with Disabilities Amendments Act may make it more likely that increased numbers of individuals will be viewed by courts as having a disability under the ADA.

But if the Court allows the commonality and typicality prongs to be met in Dukes, one could envision an enterprising plaintiff's lawyer showing a dearth of hiring or advancement of employees with disabilities, anecdotal evidence of disability discrimination, and decentralized and subjective decision making creating the potential for bias. This could provide a jumpstart to disability discrimination employment class actions, and could reinforce an idea that I have discussed elsewhere--that it is the shared stigma of the disability classification and the employer's response to disability that can serve to bind together members of the class.

You'll have to read the whole thing to see Michael's predictions on the outcome at the Supreme Court.


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Michael's post is characteristically thoughtful and very interesting. Just a couple of things: (1) At least for (b)(2), the "questions of law or fact common to the class" requirement has always been thought to be minimal. For that reason, I would resist equating that requirement with the term "commonality," which in ordinary usage suggests that the class has more in common than a single shared question of fact or law. (2) The Supreme Court approved a huge (though unquantified) class in Califano v. Yamasaki, 442 U.S. 682 (1979), which leads me to think that size alone is not likely to be the sticking point.

Posted by: Mark Weber | Jan 11, 2011 6:48:42 AM

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