A gender discrimination case before the Supreme Court today that will decide whether women employees and former employees of Wal-Mart can proceed with a class action lawsuit against the company is among the "most important" discrimination cases, testing whether the force and intent of discrimination laws will be protected, said Marcia Greenberger, founder and co-president of the National Women's Law Center, during an ACS panel discussion about Wal-Mart v. Dukes.
"Through the most technical and dense-sounding legal issues, this court will ultimately decide whether employees in this country, women in this country, minorities, others, older workers, disabled workers, will be able to hold employers accountable, or whether it will be left to an individual to uphold and protect her rights against the biggest employer in this country and have to find the resources on her own to combat the kind of litigation," Greenberger said.
"It's the class action mechanism that allows employees to be able to bring these issues to the fore and to enable justice to be served and ultimately fairness to be meted out," she added.
The procedural issues in the case include whether the class is properly before the court seeking injunctive relief when they are also seeking monetary damages as part of their claim, explained McGuireWoods lawyer Andrew Trask, who suggested the case was brought under the wrong provision, Rule 23(b)(2), and should have instead been brought under Rule 23(b)(3), which imposes a more onerous burden on the plaintiffs.
But Suzette Malveaux, an associate professor of law at Columbus School of Law, Catholic University, explained that Rule 23(b)(2) is silent as to whether or not monetary damages may be sought, and that the rule's drafters intended to allow plaintiffs to seek monetary relief, so long as that relief did not overshadow any injunctive relief sought.
In particular, she said, back pay - wages plaintiffs would have received if not for the discrimination - has been crucial in discrimination class actions.
"Courts for decades have allowed back pay ... Back pay is critical to eradicating systemic discrimination, making people whole and deterring future employers," said Malveaux, who authored an article about the case in ACS's official journal, the Harvard Law & Policy Review, "Class Action at a Crossroads: An Answer to Wal-Mart v. Dukes."
Adam Klein, a partner at Outten & Golden who specializes in class actions, added, "What the plaintiffs will tell you is that they're trying to change the practices of their clients. The fact that there is an economic value to that is secondary."
He pointed out that each individual class member may or may not have an "injury in fact" that entitles them to money damages.
"That's to be determined, and not before the court right now," he said.
Watch the full discussion here.
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