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40 Lab. & Emp. L. 1 (2011-2012)

handle is hein.journals/laboemplo40 and id is 1 raw text is: loy rEn FALL 2011 VOLUME 40, NUMBER I Section of Labor and Employment Law American Bar Association --N t 1 i - -'Jt N SeTV4 r of E yn~ 2 ~ A ~ MA PMr< Professor Eric Schnapper opened the Section's annual CLE confer- ence with a rousing Supreme Court review. Schnapper, who, as long- time counsel for the NAACP Legal Defense and Educational Fund, Inc., has appeared in over 80 U.S. Supreme Court cases, summarized the session's key employment cases, explaining the neat resolu- tion provided by some decisions and the havoc wrought by others. Beginning with Wal-MartStores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), Schnapper, who teaches at the Uni- versity of Washington Law School in Seattle, said the case could either herald the end of class ac- tions or be merely a quirky case ... a strange response to unusual circumstances. In one of the most expansive class actions ever, the Supreme Court rejected the plaintiffs' attempt to certify a na- tionwide class of 1.5 million female employees who alleged that Wal- Mart's subjective pay and promo- tion policies violated Title VII. Schnapper first discussed the Court's holding that the plaintiffs' back-pay claims could not be cer- tified for class treatment under Federal Rule of Civil Procedure 23(b)(2), which allows certifica- tion when final injunctive relief or corresponding declaratory relief is appropriate respecting the class Wa-Mart Stores v. Dukes plaintiffs gather outside the Supreme Court after oral arguments in the case last March. AP PHQTD/JACQUELYN MARTIN as a whole. The monetary relief, the Court said, was not incidental to the injunctive or declaratory relief, casting significant doubt on the continued viability of a long- standing class action structure. The implications of this ruling are unclear. For example, the Court held that Wal-Mart has a right to an individualized hearing on each employee's eligibility for back pay, allowing employers to raise individual affirmative defenses to each employee's claim. Schnapper predicted that lower courts likely will find that Wal-Mart requires in- dividual hearings on the amount of monetary relief as well. However, he pointed out that experience dictates that most employers do not seek to hold individual hear- ings, and when they have, it has been a catastrophe. Pointing to cases in which defendants lost most of their individual hearings, he noted that if the court has already found systemic discrimi- nation, odds are the employer is going to lose the individual cases. Next, Schnapper discussed what Justice Antonin Scalia de- scribed as [t]he crux of this case[:] commonality-the rule requiring a plaintiff to show that 'there are questions of law or fact common to the class.' The Court found that plaintiffs ha[d] not established the existence of any common ques- tion, but left open a number of questions about what it would take to do so. For example, How common does the question have to be? Jus- tice Scalia's majority opinion gave no clear guidance, stating alterna- tively that the challenged pattern or practice must be standard op- erating procedure, or meet a nu- merical threshold, or exist in every region, store, or decision. Similarly, the opinion raised the question of how much evidence a plaintiff must have to establish commonality, but offered no resolution. Instead, the Court first seemed to apply a summary judg- ment-type standard-enough evidence to infer that a challenged practice is standard operating procedure-while later suggesting that a court must find that the stan- dard operating procedure exists, continued on page 14 ml~ 4 1$ F] 2 &Il a A

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