workplace discrimination

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By Piper Hoffman. Ms. Hoffman is an employment attorney and writer. She blogs at piperhoffman.com.

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Dukes v. Wal-Mart, the largest class action in history, continues its tortuous journey through the federal court system with a knock at the Supreme Court's door. Plaintiffs won class certification in the district court over six years ago, then won again before a Ninth Circuit Court of Appeals panel, then won again in a rehearing before the same panel, then won again after Wal-Mart got a rehearing en banc. With nowhere else to go, Wal-Mart has petitioned the Supreme Court for certiorari.

The Dukes class sues Wal-Mart for gender discrimination. The first paragraph of its Third Amended Complaint sum up its accusations:

Wal-Mart is the largest retailer in the world and the largest private employer in the United States ... There are two workforces at Wal-Mart. By far the largest workforce is female, which comprises over 72% of the hourly sales employees, yet only one-third of management positions. This workforce is predominantly assigned to the lowest paying positions with the least chance of advancement. The other workforce is male. This workforce is the reverse image of the female workforce-it comprises less than 28% of the hourly sales workers, yet holds two-thirds of all store management positions and over 90% of the top Store Manager positions. This disparate distribution of the genders is the result of purposeful discrimination and of practices that serve no reasonable business purpose yet have a disproportionate impact on women.

Wal-Mart's brief to the Supreme Court reads like the Hail Mary pass that it is. (Dukes's response to the petition is due September 24.) The company's attorneys shoved in every argument they could dream up, including repeating one of the Ninth Circuit dissenting opinions essentially in toto. But their primary theme can be summed up in one sentence: Wal-Mart is so big that bringing a class action against it would be unfair - to Wal-Mart.

Since that is not grounds for granting certiorari, Wal-Mart argues instead that the Supreme Court should take the case because of any number of disagreements among and even within the Circuits. But the en banc Ninth Circuit opinion, 603 F.3d 571, 582 (9th Cir. 2010), analyzes these alleged disagreements in depth and demonstrates that they are unworthy of certiorari. For instance, the district courts have demonstrated some confusion in following Miles v. Merrill Lynch & Co. (In re Initial Pub. Offerings Securities Litigation), 471 F.3d 24 (2d Cir. 2006), the case that requires courts to determine that all of the Rule 23 factors necessary for class certification are satisfied, even if the court must examine facts or questions that overlap with the merits in order to make that determination. While different circuits may have expressed their standards in different language, the Ninth Circuit shows that the Supreme Court already announced the necessary law in Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982).

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By David L. Hudson Jr., a First Amendment Scholar at the Freedom Forum First Amendment Center. Hudson writes regularly on free-speech and employment discrimination cases.

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In recent years the U.S. Supreme Court has proved a fair and friendly forum for those asserting claims of retaliation under discrimination statutes such as Title VII of the Civil Rights Act of 1964. In Burlington Northern v. White (2006), the Court explained that an employer can retaliate within the meaning of Title VII with actions short of terminations and other ultimate employment actions. In Crawford v. Metro Gov't of Nashville (2009), the Court ruled that Title VII's opposition clause extended to an employee who was terminated after she participated in an employee's internal investigation.

Both Burlington Northern and Crawford arose out of the Sixth Circuit. Some court-watchers say it is likely that the Supreme Court will pluck another Sixth Circuit Title VII retaliation case from its docket. The Court may hear Thompson v. North American Stainless (09-291) to determine whether Title VII's anti-retaliation provision protects an employee who alleged he was terminated in retaliation for his then-fiancée's (now his wife) EEOC claim alleging sex discrimination.

The facts as framed by Thompson certainly reek of retaliation in the layman's sense of the word. Eric Thompson worked for more than five years as an engineer for North American Stainless. Thompson's fiancée, Miriam Regalado, filed an EEOC charge against North American Stainless for gender discrimination. The EEOC notified the company of the discrimination charge on March 7, 2003. Three weeks later, the company terminated Thompson, claiming it was for performance-based reasons. Query - if it really was for performance-based reasons why did the company base its decision only a few weeks after his fiancée's discrimination claim.

Thompson alleged unlawful retaliation under Title VII. The company countered that he was not retaliated against within the meaning of Title VII because he (Thompson) did not actively oppose any unlawful employment practice or participate in any discrimination proceeding. The company contended that Thompson failed to allege that he personally engaged in any protected activity.