The problem, Ted writes in the Examiner, isn’t that the class action is “too large” — even very large classes can sometimes fit the law’s requirements that each claim be identical in nature and capable of standing or falling together.
But the theory of the Dukes lawsuit is exactly the opposite: the plaintiffs claimed that Wal-Mart’s central office did not exercise enough authority over each of its 3,400 stores; each of the individual managers’ discretionary employment or promotion decisions–whether made by male or female managers–was, on average, discriminatory; and thus Wal-Mart was responsible for a policy that “fosters or facilitates” discrimination. …
The discrimination laws permit Wal-Mart to defend itself by demonstrating that the challenged job decision was made for a reason other than gender. For example, looking at Betty Dukes, the named plaintiff, alone, we learn that she had a female manager and that she was repeatedly disciplined for returning late from lunch breaks. …Wal-Mart is stripped of its defense because the individualized defense would be inconvenient to trying the case as a class action. …
If the Supreme Court rules in Wal-Mart’s favor later this year, it will not be to protect business, but to protect due process.
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I just added an excerpt from this to my commentary at “Taking Apart the Sex-Bias Class-Action Lawsuit Against Wal-Mart” at http://battlinbog.blog-city.com/male_matters_takes_apart_the_classaction_lawsuit_against_wal.htm
The SCOTUS specifically rejected hearing the Due Process argument Wal Mart raised, though there is another Tobacco case in the pipeline that they might address that issue in.
I am not sure that the quote gets the issue right. The plaintiffs are alleging disparate impact in the class claims, which in a nutshell means that Wal-Mart employs a practice which impacts women more than men. It does not require a showing of discriminatory intent and the defense Ted Frank is talking about (not a defense technically) is not available in such a claim.
As the retired senior Labor & Employment counsel for Woolworth, now operating as Foot Locker, I can appreciate Ted Frank’s point on the inherent problems in defense, should the class action be upheld. At its prime, FWW employed well over 150,000 in over 3000 stores in 50 states, Puerto Rico and the Virgin Islands, and drew from essentially the same labor pools as Wal-Mart for its staffing. I used to say that its hiring and promotion policies were as strong as its weakest links, its managers. They enforced and applied the company rules and policies on a day to day basis in the units they ran, and they, being human, were prone to make mistakes in judgment or in applying said policies. The vast majority did the right thing, but, as in all large organizations, there were some bad apples or lapses in judgment. They were weeded out ASAP, but they existed. Defending the company from the harm caused by these bad apples or lapses was more than a full time job, but it was doable on a case by case basis. In my span almost 30 years of defense of the company, we avoided class actions; indeed, we had very little litigation and fewer losses. And this was in defense of the stores which were the target of many civil rights demonstrations, starting with the Greensboro lunch counter in 1960 (before my hire.)
In my considered opinion, it would be impossible to defend a class action of the scope of that involved in the Wal-Mart case, particularly since matters such as promotions and raises are unique decisions predicated on the merits of each individual affected by them.