Monday, June 20, 2011
Dukes and Duryea: Bad Day at the Supreme Court for Public and Private Employees in US
Marcia has already provided the syllabus for the Court's decision in Wal-Mart v. Dukes below and has given her comments. Here are mine: predictable outcome and unmitigated disaster for historically oppressed employees seeking large-scale workplace justice against their employers.
Plaintiffs lost 9-0 on the injunctive 23(b)(2) action, but even more troubling, Scalia and friends make the Rule 23(a)(2) commonality question akin to the higher showing required for the predominance inquiry under (b)(3).
Scalia's majority opinion strikes me as purposely obtuse, as if to say, "I don't get what the dissent and plaintiffs are even talking about in this case." Furthermore, Scalia goes out of his way to both ignore, and be rude to, Bill Bielby, the sociologist who supplied the social framework evidence to show commonality in the plaintiffs' claims.
On a personal note, Scalia cites Monahan et al.'s Virginia Law Review's piece against using social framework evidence without even mentioning that there was substantial scholarly disagreement over social framework evidence's use in the class-action employee discrimination context. I alas was also disappointed that Ginsberg's partial dissent did not engage on the social framework issue and, of course, failed to mention the agruments that Melissa Hart and I discussed in our Fordham Law Review piece from 2009 (which, BTW, was cited by both the majority and dissent in the 9th Circuit's en banc decision).
As for public employees, the less known case today of Borough of Duryea v. Guarnieri (US 06/20/2011), found that a public employee petitioning the government under the First Amendment must meet the "matter of public concern" test from public employee free speech law (i.e., Connick v. Myers). In a largely uncontoversial decision, the Court held, 7-1-1, that, "a government employer’s allegedly retaliatory actions against an employee do not give rise to liability under the Petition Clause unless the employee’s petition relates to a matter of public concern. The Third Circuit’s conclusion that the public concern test does not limit public employees’ Petition Clause claims is incorrect."
I am not surprised that the Court has come to this conclusion given the current Pickering-Connick-Garcetti framework for public employees in the US under the First Amendment. I guess I was hoping that in discussing this related Petition Clause claim one of the more progressive members of the court would pick up the thread of the argument that I and others have been making in various articles that the current framework for public employee free speech does not take seriously the speech rights of public employees and makes it nearly impossible for public enmployees to hold government accountable and transparent by being the "vanguard of the citizenry."
In short, bad day for most employees in the United States both under federal constitutional and statutory workplace law.
Here's a question - if, in these unsupervised discretion = disparate impact cases, plaintiffs must establish a "common mode of exercising discretion that pervades the entire company,"
and if that "common mode" must essentially be proved on a shop-by-shop basis in order to be sufficient (to certify the class, mind you, not to win the case),
and if disparity alone is not enough, but in fact plaintiffs must identify a "specific employment practice" (and "pervasive discriminatory exercise of discretion" presumably wouldn't suffice)...
and if, moreover, different forms of discrimination will not suffice, but plaintiffs must show that all discrimination alleged is of the exact same _kind_,
then how exactly is this any different from just requiring everyone to sue individually?
Posted by: Alek | Jun 20, 2011 3:29:23 PM