Texas Employment Law Blog : San Antonio Employment Discrimination Lawyer & Attorney : McKinney Law Firm : Sexual Harassment, Wrongful Termination : Texas

Today, the Supreme Court blocked a class action sex discrimination lawsuit against Wal-Mart on behalf of women who work there.

As I predicted here, the court ruled that the lawsuit cannot proceed as a class action, reversing a decision by the 9th U.S. Circuit Court of Appeals in San Francisco. The lawsuit could have involved up to 1.6 million women, with Wal-Mart facing potentially billions of dollars in damages.

The case started in 2000, when a 54-year-old Wal-Mart worker in California named Betty Dukes filed a sex discrimination claim against her employer. Dukes claims that, despite six years of hard work and excellent performance reviews, she was denied the training she needed to advance to a higher, salaried position. Wal-Mart's position is that Dukes clashed with a female Wal-Mart supervisor and was disciplined for admittedly returning late from lunch breaks.

In June 2001, the lawsuit began in U.S. District Court in San Francisco. The plaintiffs seek to represent 1.6 million women, including all those who work or have previously worked in a Wal-Mart store since December 26, 1998. In June 2004, the federal district judge, Martin Jenkins, ruled in favor of class certification under FRCP 23(b)(2). The Ninth Circuit affirmed the class certification. Wal-Mart appealed the decision to the Supreme Court.

Today's ruling from the Supreme Court means that each member of the class will need to obtain a lawyer to represent her and pursue her claim individually against the retailing behemoth.  Undoubtedly, many or most will be unable to do so and will therefore never get their day in Court.

Links: 

• SCOTUS Opinion
• Previous Article with Links to Briefing and Oral Argument

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Dukes v. Wal-Mart Stores, Inc., an ongoing sexual discrimination lawsuit, is the largest civil rights class action suit in United States history. It charges Wal-Mart with discriminating against women in promotions, pay, and job assignments in violation of Title VII of the Civil Rights Act of 1964.

The case started in 2000, when a 54-year-old Wal-Mart worker in California named Betty Dukes filed a sex discrimination claim against her employer. Dukes claims that, despite six years of hard work and excellent performance reviews, she was denied the training she needed to advance to a higher, salaried position. Wal-Mart's position is that Dukes clashed with a female Wal-Mart supervisor and was disciplined for admittedly returning late from lunch breaks.

In June 2001, the lawsuit began in U.S. District Court in San Francisco. The plaintiffs seek to represent 1.6 million women, including all those who work or have previously worked in a Wal-Mart store since December 26, 1998.  In June 2004, the federal district judge, Martin Jenkins, ruled in favor of class certification under FRCP 23(b)(2). The Ninth Circuit affirmed the class certification.  Wal-Mart appealed the decision to the Supreme Court. 

Yesterday, the SCOTUS heard oral arguments in the case. 

Links:

• Transcript of the Oral Argument
• Audio of the Oral Argument [Usually posted within a week or so]

Links to Court Filings:

• Brief for Petitioner Wal-Mart Stores, Inc.
• Brief for Respondent Betty Dukes
• Reply Brief for Petitioner Wal-Mart Stores, Inc.
• Ninth Circuit's Opinion Below

Links to Background Materials and Analysis:

• Links page to most of the briefing in the case from Impact Fund website
• SCOTUSblog Analysis
• LawMemo Blog Analysis
• Workplace Prof Blog Analysis
• Ohio Employer Law Blog Analysis
• Lawffice Space Analysis
• New York Times: "Supreme Court to Weigh Sociology Issue in Wal-Mart Discrimination Case"

Prediction:  Close call but I'm going to predict a victory for Wal-Mart on this one. 

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 Today, the Supreme Court agreed to take a case in which it will decide whether the largest employment discrimination lawsuit in U.S. history should be allowed to go to trial.  The sex discrimination case, which comes up from the Ninth Circuit, is based on a claim that Wal-Mart pays women less than men and promotes men more frequently than women.

The case involves billions of dollars in back pay for .5 to 1.5 million women who work or used to be employed by Wal-Mart. Wal-Mart is the world's largest private employer. The primary issue in the case is whether the class of plaintiffs is just simply too large to be effectively managed by the Court.  The case will be closely watched because it will likely affect other class-action lawsuits.

Links:

• Read the rest of the story here.
• And here is the Ninth Circuit Opinion being appealed by Wal-Mart.

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 The Supreme Court heard arguments yesterday in Kasten v. Saint-Gobain Performance Plastics Corp.  You recall that In Kasten, the Court will determine whether an employee's making an oral, instead of a written, complaint of a violation of the Fair Labor Standards Act is protected conduct under the statute's anti-retaliation provision.

October 17, 2010 - UPDATE - Link to Oral Argument Audio Added

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The Supreme Court's 2010 Fall Docket has been released.  Many employment lawyers have noted that while the current court has taken a dim view of employee's rights in general, one area where they have generally supported employees is in retaliation cases.  

This Fall, the Court has taken three employment cases.  Two of the three are retaliation cases.  

Here is the basic rundown on this fall term's cases along with some links to the lower court's opinion and case briefing for each case:

• Thompson v. North American Stainless
  • In Thompson, the Court will decide whether someone closely connected with an employee who complains of discrimination -- here the employee's co-worker/fiance -- is protected from retaliation. The fiance was fired and has brought a retaliation case.
    • Opinion Below
    • Petitioner's Brief
    • Respondent's Brief - Not Yet Filed
    • Oral Argument: December 7, 2010
    • Notes: Justice Kagan is recused in this case.
    • Oral Argument
    • Supreme Court Opinion

• Kasten v. Saint-Gobain Performance Plastics Corp.
  • In Kasten, the Court will determine whether an employee's making an oral, instead of a written, complaint of a violation of the Fair Labor Standards Act is protected conduct under the statute's anti-retaliation provision.
    • Opinion Below
    • Petitioner's Brief
    • Respondent's Brief
    • Oral Argument Transcript
    • Oral Argument AUDIO RECORDING
    • Notes: Justice Kagan is recused in this case.

• Staub v. Proctor Hospital
  • Here the Court will be addressing what lawyers commonly refer to as the "cat's paw" theory of liability.  The question presented is whether an employer, without discriminatory motive, may be liable for firing an employee based on information or advice from biased managers.
    • Opinion Below
    • Petitioner's Brief
    • Respondent's Brief
    • Oral Argument Transcript
    • Supreme Court Opinion
    • Notes: Justice Kagan is recused in this case.

While none may make the front page of the local paper, all three of these cases are interesting issues and important to practitioners.  I'll be watching them closely.  You can bookmark this page if you wish as I will update the links here with the oral arguments and opinions as they become available.

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The White House has begun releasing trial baloons for the individuals under consideration to replace the retiring Justice Stevens on the Supreme Court.  Among those apparently being considered are Solicitor General Elena Kagan and federal appellate judges Merrick Garland of Washington, D.C., and Diane Wood of Chicago.  Also on the list is federal Judge Sidney R. Thomas of Montana and former Georgia State Chief Justice Leah Ward Sears, the first female African-American chief justice in U.S. history.

Also reportedly under consideration are Harvard Law School Dean Martha Minow, Michigan Governor Jennifer Granholm and Homeland Security Secretary Janet Napolitano, who was formerly governor of Arizona. 

In case you were wondering, the White House has made it clear that Secretary of State Hilary Clinton is not under consideration.

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The National Law Journal has a good article this morning by Robert Niccolini regarding the ongoing split in the circuits on the issue of so-called "cat's paw" theory of liability in employment discrimination cases.  Under the "cat's paw" theory,  an employer can be held liable for discrimination when a final decision-maker is influenced to take an adverse action against another worker by a lower-level employee with discriminatory motives. 

Employment lawyers are hoping the U.S. Supreme Court will resolve the current conflict in the federal circuits over the theory.  On Nov. 9, the Supreme Court asked the solicitor general for the government's views on the case of Staub v. Proctor Hospital, which raises the cat's paw theory. The Court is considering whether to hear the case. 

Read the whole National Law Journal Story here.

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Last week the Supreme Court handed down a unanimous decision in favor of the plaintiff in Crawford v. Metropolitan Government of Nashville (S.Ct. 1/26/09). The Court held that an employee who answers a question about a fellow employee's improper conduct during an internal sexual harassment investigation is engaging in protected activity under Title VII. 

Title VII of the 1964 Civil Rights Act prohibits employment discrimination, including harassment, on the basis of race or sex. It also protects employees from retaliation for opposing any unlawful discrimination or participating in an investigation of unlawful discrimination "under" Title VII. The question presented in Crawford was whether this anti-retaliation provision protects employees who participate in an internal company investigation of alleged sexual harassment.The Court decided, 9-0, that yes such protection exists.  

Here is the syllabus summary of the decision:

In response to questions from an official of respondent local government(Metro) during an internal investigation into rumors of sexual harassment by the Metro School District employee relations director (Hughes), petitioner Crawford, a 30-year employee, reported that Hughes had sexually harassed her. Metro took no action against Hughes, but soon fired Crawford, alleging embezzlement. She filed suit under Title VII of the Civil Rights Act of 1964, claiming that Metro was retaliating for her report of Hughes’s behavior, in violation of 42 U. S. C. §2000e–3(a), which makes it unlawful “for an employer to discriminate against any . . . employe[e]” who (1) “has opposed any practice made an unlawful employment practice by this subchapter”(opposition clause), or (2) “has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter” (participation clause). The court granted Metro summary judgment, and the Sixth Circuit affirmed, holding that the opposition clause demanded “active, consistent” opposing activities, whereas Crawford had not initiated any complaint prior to the investigation, and finding that the participation clause did not cover Metro’s internal investigation because it was not conducted pursuant to a Title VII charge pending with the Equal Employment Opportunity Commission.

Held: The anti-retaliation provision’s protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation.Because “oppose” is undefined by statute, it carries its ordinary dictionary meaning of resisting or contending against. Crawford’s statement is thus covered by the opposition clause, as an ostensibly her. “Oppose” goes beyond “active, consistent” behavior in ordinary discourse, and may be used to speak of someone who has taken no action at all to advance a position beyond disclosing it. Thus, a person can “oppose” by responding to someone else’s questions just as surely as by provoking the discussion. Nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when asked a question. Metro unconvincingly argues for the Sixth Circuit’s active, consistent opposition rule, claiming that employers will be less likely to raise questions about possible discrimination if a retaliation charge is easy to raise when things go badly for an employee who responded to inquiries. Employers, how-ever, have a strong inducement to ferret out and put a stop to discriminatory activity in their operations because Burlington Industries, Inc. v. Ellerth, 524 U. S. 742, 765, and Faragher v. Boca Raton, 524 U. S. 775, 807, hold “[a]n employer . . . subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with . . . authority over the employee.” The Circuit’s rule could undermine the Ellerth-Faragher scheme, along with the statute’s “ ‘primary objective’ ” of “avoid[ing] harm” to employees, Faragher, supra, at 806, for if an employee reporting discrimination in answer to an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses.

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