Five Reasons Why the Walmart Decision Doesn't Affect Your Discrimination Case

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There's been lots of hoopla over the Wal-Mart v. Dukes class action case that the Supreme Court just decided. You may have heard how the decision was a serious blow to class action discrimination cases. Maybe you're worried about your own discrimination case and have some concerns that the Supreme Court decision somehow affects your chances in court or with EEOC.

The Wal-Mart case involved a class of 1.5 million female employees, nationwide, who allegedly were denied promotions and pay increases. The class plaintiffs claimed that the retail giant's policy of allowing local managers to make promotion and pay decisions within their own discretion resulted in a statistically disparate impact on females across the entire company. For instance, they argued that women fill 70 percent of the chain's hourly jobs but hold only 33 percent of its management position. They claimed that promotional opportunities were not posted, but were done as a "tap on the shoulder," and that the tap tended to favor males.

They offered testimony that senior management referred to female associates as, "little Janie Qs," and that one manager said, "men are here to make a career and women aren't." They offered proof that a committee of female Walmart executives concluded that, "stereotypes limit the opportunities offered to women." They also offered expert testimony that Walmart's pay and promotion disparities "can be explained only by gender discrimination and not by . . . neutral variables."

Sounds bad, huh? So why did the Supreme Court toss the class action? And how does this affect other discrimination cases? Here are the top 5 reasons why the Walmart case probably doesn't affect your discrimination case one whit:

1. No impact on individual claims.

Many people think a case is a class action if there are 2 or more plaintiffs, but that's not so. A class action is one in which the plaintiffs are too numerous to list (say, 100 or more), and the class has one or more designated representatives who make claims on behalf of the entire class. Odds are that your case is about discrimination against you. Even if you can cite others who were subjected to the same type of discrimination, or if you sue along with some co-workers, that doesn't make it a class action.

2. Bias of individual decision makers.

One of the biggest beefs that the majority of Supreme Court justices had with the Walmart case is that they couldn't swallow the argument that thousands of local managers could all be infected with the same bias. In order to bring a class action, you have to show that the plaintiffs have "commonality," that is, questions of law or fact in common. The court found that the decision-makers likely acted for a host of different reasons. Some might have fewer female than male employees. Some might reward employees for scores on aptitude tests or education. Some might be guilty of intentional discrimination, but not all. Your case probably involves alleged discrimination by your supervisor, or by someone directly in the chain of command linked to you. If the person making the decision in your case was biased, you still have a discrimination claim.

3. Expert witness problems.

Experts are tough to deal with, and the Supreme Court had problems with the experts that the plaintiffs introduced. For instance, they offered testimony of a witness saying that the corporate culture of Walmart made it vulnerable to gender bias. However, he apparently couldn't say whether that bias affected 0.5 percent or 95 percent of the employment decisions at the company. The court's majority said that they found this testimony didn't advance the case at all, and they disregarded it. They also didn't like the analysis, region-by-region, showing significant statistical differences by gender. I can't say one way or the other whether the court was right in its analysis of the expert testimony, but I can say that your case probably doesn't involve experts. Even if you do have experts, yours probably won't be testifying about the same issues these experts testified about. The problems the court cited were very specific and likely don't affect your case at all.

4. Testimony by a small percentage of employees.

The plaintiffs offered 120 affidavits about discrimination against female employees. That's about 1 for every 12,500 employees. In contrast, the court pointed to a case that they allowed in which the plaintiffs offered affidavits for one in about every eight employees. A class this large is pretty unwieldy for a number of reasons. The court said that the affidavits didn't represent a large enough cross-section of employees. In your case, you'll likely have testimony from 100 percent of the plaintiffs -- namely, you. Even if you bring a case with two or more co-workers, you'll all testify.

5. Technical rules issues.

The other big issue in the Walmart case was which rule the damages claims should have been brought under. If the case hadn't been decided on the commonality issue, the decision on the technical rules issue would have allowed the plaintiffs to go back and plead under the right rule. And that's what usually happens when there is a pleading issue in a lawsuit. If your court finds that there are technical problems with your complaint, they'll probably let your lawyer go back and amend.

When you see a high-profile case like the Walmart case, you'll hear lots of opinions about it. Before you panic and decide that you no longer have a case, it's best to talk to an employment lawyer in your state about it. Your case will depend on your individual facts and the laws in your state.