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

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FALL 2011
VOLUME 40, NUMBER I
Section of Labor and
Employment Law
American Bar Association

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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

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