Tuesday, May 20, 2014

Weighing in on Wal-Mart

I want to thank the workplace prof blog for the opportunity to weigh in with some of my views on employment discrimination law in the coming weeks.  The issue that I am currently focusing on is the Supreme Court's troubling decision in Wal-Mart.  Though the case is now a couple of years old, the ripple effects from this decision are just now being felt in the lower courts.  There seems little question that Wal-Mart has made it much more difficult for plaintiffs to bring class action employment discrimination cases.  Combined with the Supreme Court's other decision in Concepcion, it is now harder for workplace victims to act collectively when seeking relief from an employer.

There have been a number of wonderful articles by friends of this blog detailing the problems inherent with the Court's flawed decision. Putting these excellent pieces aside for the moment, however, what interests me is how class action employment discrimination plaintiffs should proceed after Wal-Mart.  What are the best vehicles currently available to plaintiffs seeking to file systemic claims?

I am hoping that this blog can help spark a discussion of the various options still available to plaintiffs seeking to act collectively. In my view, there are four primary approaches that plaintiffs can use to circumvent the Court’s decision. These include the governmental approach, the procedural approach, revised relief, and issue class certification. Over the coming weeks, I will outline the potential use of each of these mechanisms for plaintiffs to still pursue class-action claims following the Wal-Mart case. Importantly, I do not view these four avenues as exclusive roads to systemic relief. Indeed, I am simply hoping to spark a conversation of how plaintiffs should proceed in this area. I thus invite others to weigh in here with any suggestions they might have on this topic.

More to follow soon...



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