As was recently reported, tomorrow a federal district court in California will consider whether the Wal-Mart v. Dukes class action lawsuit recently reversed and remanded by the U.S. Supreme Court may proceed in the form of multiple class action lawsuits involving narrower classes.

On June 20, 2011, the Supreme Court issued its opinion in Wal-Mart v. Dukes. That decision, among other things, held that the proposed nationwide class of some 1.5 million female employees was not consistent with Rule 23(a) of the Federal Rules of Civil Procedure. Specifically, the Court concluded that Rule 23(a)(2) requires a party seeking class certification to prove that the class has common questions of law or fact, i.e., the claims must depend upon a common contention of such a nature that it is capable of classwide resolution. On remand, an open question remains whether the commonality requirement can be met if the gargantuan class action is broken down into hundreds if not thousands of smaller class actions.

Where do trial courts go after Wal-Mart v. Dukes? What do the "new and improved" classes look like if they are to pass the standard announced by the Supreme Court? As a matter of policy, what is the right outcome for our system of justice?

Today the U.S. Supreme Court will hear argument in Wal-Mart Stores, Inc. v. Dukes, the largest employment class action in American history.  The Court’s decision will address the standards for certifying a nationwide class action and when a class action for monetary relief can be certified as a mandatory, non opt-out class.

The debate has already begun on the arguments to be made today and what the likely outcomes will be.  DRI has joined the debate, and will provide post-oral argument reaction and commentary in an April 5, 2011, web cast entitled "Reaction to Oral Argument in Wal-Mart v. Dukes.”  The two presenters are dynamite:  Carter G. Phillips, Managing Partner of the Washington D.C. office of Sidley Austin LLP and a frequent Supreme Court advocate, wrote the DRI amicus brief in the Dukes case; and Professor Martin H. Redish, an esteemed law professor at Northwestern University School of Law, has written extensively on class actions.
 
For DRI members like us, it’s only $150 - and that is per site, not per person. For complete details, you can download the brochure.  Also, to make it easy, if you want to register, click here. 

Despite significant progress for women in the legal profession, there are some differences in the way men and women are expected to behave that may not change until societal norms and expectations change as a whole.  In a recent article in the ABA Journal, Justice Sotomayor provided some thoughts about the differing expectations of male and female judicial candidates  She remarked that she was offended by some of the questioning that took place during her confirmation hearings, especially questions related to her dating history.  Her dating history was a hot topic because Justice Sotomayor has been divorced since 1983 and never remarried.  For a male federal court judge that fact may not matter.  But for a female judge this fact along with who you have dated, how often, and who you choose to bring to public events easily becomes a source of scrutiny. 

It’s a classic double standard that is unfortunate and unfair.  Proposing a ban on personal questions in confirmation hearings and interviews is probably not enough to change things because you can’t stop people from making assumptions about a woman’s professional ability based on her behaviors in her personal life.  Personal opinions, assumptions and expectations are bred into us through society and the media – many on a subconscious level.  Ultimately, societal and cultural views would have to change before women can feel free to act in the same manner as men without the worry that they will risk their professional reputations.  Whether that can happen depends a lot on those with the power to shape the parameters of what is or is not acceptable within their own offices and professions – be that law partners or politicians. 

The Supreme Court has confirmed that an employer may be liable for workplace discrimination or retaliation even though it is undisputed that the ultimate decision-maker himself or herself has no bias or retaliatory motive. How can this be possible? According to the Court, the logic behind the "cat's paw" theory can play out as follows: (1) a supervisor takes a step for a biased or retaliatory reason with the intention of getting the employee fired, demoted, and penalized; and (2) the supervisor's step is the "proximate cause" of the ultimate decision, even if the person making the final decision had no discriminatory bias, retaliatory motive, or even any knowledge of the alleged protected activity. In the case before the Court, the plaintiff alleged that his supervisors placed unfavorable entries in his personnel record and created special work rules just for him, all because of their hostility towards the time missed due to his military service. The VP of Human Resources later terminated the plaintiff after receiving a report from the same supervisor that the plaintiff had violated the terms of a previously issued corrective action.

The "cat's paw" theory is not novel, and has been recognized by courts in various forms. The Supreme Court's adoption of a "proximate cause" standard, however, will be a challenge to employers, who may now be liable for the unknown biases and motives of first level supervisors. The Court even noted that the decision-maker's own investigation may not necessarily absolve the employer from liability. In other words, the person making an adverse employment decision cannot blindly rely upon the discriminatory acts and recommendations of supervisors.

The issue of the lack of racial diversity in the National Hockey League (“NHL”) is not a new one, but with the filing of a new lawsuit in California on January 25, 2011, it appears that the NHL may have other discrimination issues to worry about as well.  Jason Bailey, a Jewish hockey player drafted by the Anaheim Ducks and assigned to play with their minor league affiliate the Bakersfield Condors, is suing the Ducks for religious discrimination and failure to prevent harassment.  According to the Orange County Register, Bailey’s Complaint alleges that he was subject to severe harassment from both the Condors’ head coach and assistant head coach relating to his religious beliefs.  In response to Bailey’s complaints about the harassment, both coaches were briefly suspended and made to write letters of apology, a penalty that Bailey alleges was not stiff enough.  Bailey was subsequently traded by Anaheim to the Ottawa Senators organization where he plays for their minor league affiliate, the Birmingham Senators.  Both coaches remain with the Condors although the Ducks cut their ties with the team last year.

In a much-anticipated opinion released today, a unanimous U.S. Supreme Court held that Title VII’s retaliation provisions protect third parties from retaliation in addition to complainants.

In Thompson v. North American Stainless LP, (Case No. 009-291), Eric Thompson and his fiancée Miriam Regalado were employees of North American Stainless (NAS).  Regalado filed a charge of discrimination against NAS alleging sex discrimination; 3 weeks later Thompson was fired.  Thompson then filed a charge alleging he was terminated in retaliation for his fiancée’s filing of her charge of discrimination.  The district court granted NAS summary judgment on the ground that third-party retaliation claims were not permitted by Title VII, and this was affirmed by the 6th Circuit.

Writing for the Court, Justice Antonin Scalia recited the retaliation standard previously enunciated by the Court in White, i.e., Title VII”s anti-retaliation provisions prohibit any employer action that “well might have ‘dissuaded a reasonable worker from making or supporting a [discrimination] charge.’”  Applying this standard to the facts in Thompson led the Court to conclude that it was “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancée would be fired.”

Given the Court’s prior decisions giving a broad construction to retaliation protections, is anyone surprised by this decision?  How does it affect how we, as practitioners, advise our employer and EPLI insurer clients?

A federal jury in Des Moines, Iowa this week rendered a verdict in favor of a female employee who claimed she was unlawfully fired because she was too "tomboyish". 

According to court records, Heartland Inns of America hired the plaintiff as a night auditor in July 2005.  The plaintiff was successful in that position and in December 2006 the plaintiff's on-site manager promoted her to a day shift front desk position.  Heartland's (off-site) director of operations approved the promotion "sight unseen", but later directed that the plaintiff be returned to her previous position.  After an internal dispute arose regarding in which position to place the plaintiff, the plaintiff was allowed to re-interview for the day shift front desk position.  The plaintiff was subsequently terminated for allegedly thwarting the company's hiring procedures and for her hostility.  A factual dispute existed whether the decision to terminate the plaintiff was motivated by her appearance, which was described as "slightly more masculine", "tomboyish" and an "Ellen DeGeneres kind of look".
 
This case had already been up before the U.S. Court of Appeals for the Eighth Circuit.  On January 21, 2010, the Eighth Circuit held that employment decisions based on sexual stereotypes violate Title VII and remanded the case to the district court for the trial that just concluded.  Lewis v. Heartland Inns of America, L.L.C., 591 F.3d 1033 (8th Cir. 2010).

The line between sexual discrimination based on orientation, which is not yet prohibited by federal law, and discrimination "because of sex" can be difficult to draw.  What impact does this decision have on employers desiring to require specific appearance standards?  Can an employer legally decide it doesn’t want to employ "tomboys"?

A divided Ninth Circuit Court of Appeals recently upheld the Northern District of California’s certification of a nationwide class of over 1.5 million current and former female employees who sued for alleged gender discrimination under Title VII of the Civil Rights Act of 1964.  Dukes v. Wal-Mart Stores, Inc., 603 F. 3d 571 (9th. Cir. 2010) (en banc).  The “commonality” factor of FRCP 23(a) was central to the case; that there are issues of law or fact common to all class members.  The district court certified the class, finding that Plaintiffs exceeded the permissive and minimal burden of establishing ‘commonality’ by demonstrating:  (1) significant evidence of company-wide corporate practices and policies, which included (a) excessive subjectivity in personnel decisions, (b) gender stereotyping, and (c) maintenance of a strong corporate culture; (2) statistical evidence of gender disparities caused by discrimination; and (3) anecdotal evidence of gender bias.  The trial court dispensed with the substantive requirements of Title VII necessitating individualized proof of discrimination, solely to make the class manageable.  Some have posited that the Dukes holding, if affirmed or simply left to stand by the U. S. Supreme Court by a denial of certiorari, denies Wal-Mart due process of law; essentially, the requirement that a plaintiff prove her individual case as required by the substantive law at issue, and the concomitant fundamental right to present a defense to it. (See DRI Today, Fahleson post 9-29-10.) 

In Dukes, the trial court discarded Wal-Mart’s individual defenses to the plaintiffs’ claims, thereby allowing the class to proceed in the face of myriad individual proof of causation and injury questions that typically obviate class certification.  For example, Wal-Mart should be entitled to show that it paid a particular plaintiff a lower wage because she was less willing to work weekends or rotating shifts, not because she was female.  Instead, the court found “commonality” among the proposed class members based upon “company-wide corporate practices and policies” and held that Wal-Mart was not “entitled to circumvent or defeat the class nature of the proceeding by litigating whether every individual store discriminated against individual class members.”  The lower court went on to propose a formula-based approach to determine individual plaintiffs’ relief without considering Wal-Mart’s defense to their claims.  

If left to stand, the impact of the Ninth Circuit’s class certification decision will not be limited to employment discrimination suits. It will also affect plaintiffs’ bids to obtain class certification in many other contexts, notably in products liability and toxic tort cases. Particularly in these areas, a plaintiff’s case inherently requires proof that a defendant’s conduct in fact caused injury.  Castano v. Am. Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996); Amchem Prods., Inc. v. Windsor, 521 U. S. 591, 620; FRCP 23(a).  The defense necessarily relies upon its ability to dispute individual causation and injury, especially in contexts of “mature” torts where general causation may have been adjudicated, but specific causation proof requirements remain central to a defense.  Dukes would eviscerate product liability and toxic tort defendants’ ability to defeat class certification by pointing to individual issues overwhelming common issues. 

The Dukes majority concluded that due process was satisfied, even without individualized hearings, by limiting back pay awards to individuals whose back pay could be easily calculated from Wal-Mart’s extensive salary database.  Such reasoning has the potential to turn class action law – in the context of product liability and toxic tort cases – on its head.  If the approach of Dukes is left to stand, a defendant’s matrix of injuries and other elements of individual claims – often used for consolidating data and resolving claims in “mature” mass torts such as asbestos – could be sufficient evidence for damages, insofar as individualized proof of causation and injury would be unnecessary.

Although certification of a 1.5 million person class was in and of itself historic, the breadth of the court’s ruling has consequences far greater than a listing in the Guinness Book of World Records. 

A recent article from Law.com that was featured on DRI Today discusses research done by law and business professors from Temple University and the University of Texas Pan American about the gender pay gap in the legal profession.  The research highlights something that may or may not be surprising – female partners earn less on average than male partners.  According to the research – the pay gap has nothing to do with lower billable hours or performance, but rather has more to do with the way most partnership and promotion opportunities are designed at law firms. 
         
What do you see in happening in your own firms?  What is your firm doing to tackle this issue?  What efforts have you seen that are successful in addressing this issue? 

Read Gender Pay Gap at Law Firms on Law.com here.

News stories highlighting the growing role of the Muslim faith in America abound.   The controversy surrounding the proposal to build a Muslim community center two blocks from “ground zero” in lower Manhattan.   Threats by a minister of a tiny Florida congregation to burn the Koran that evoked responses from military commanders and U.S. Supreme Court justices.
 
It should come as no surprise that the federal Equal Employment Opportunity Commission (EEOC) appears to once again be moving swiftly to raise awareness about federal workplace protections for Muslims.   In 2009, the EEOC witnessed an increase in the number of discrimination claims filed by Muslims—even more than were filed in the year following the 9/11 attacks.  After 9/11, the EEOC instituted selected legal actions to raise the profile of federal prohibitions against religious and national origin discrimination and issued guidance to educate practitioners on what is required.

Is there a growing hostility towards Muslims in the American workplace?  Have you seen an increase in the number of workplace discrimination claims filed by Muslims?  What kinds of Muslim discrimination cases are percolating through the appellate system?  What proactive steps are you advising employers and insureds to take to prevent such claims in an increasingly diverse culture?