Essay on "Actions Lawsuits in Employment Sex-Discrimination"

Essay 4 pages (1414 words) Sources: 4

[EXCERPT] . . . .

In this specific case, it is important to note that Wal-Mart's employment policies are not facially discriminatory, and, while women may be underrepresented in management and there are significant allegations that many of the stores have discriminatory policies, there is also significant evidence of women in management. It may be that many women in the class experienced gender-based discrimination, but the goal of the plaintiffs was not to establish a large class but to certify a class of all female employees from a certain time period. For that to be a class there would have needed to be substantial evidence that the members of the class were all subject to the same treatment and the underlying facts of the case simply do not support that allegation.

Then there is the question of whether such a class action would even pass constitutional muster. After all, the Constitution guarantees the right to Due Process, including the confrontation of the witnesses against a person in a court of law. In a class action lawsuit where the plaintiffs number 1.6 million and they are not all alleging the same allegations, it is clearly impossible to confront each of them in court. How, then, could Due Process be observed? As Moller points out, "Dukes, in its very scale and ambition, raises concerns that go well beyond the punitive damages precedents. Why are any class actions on the scale of Dukes constitutional? That is a question that is rarely, if ever, asked by serious students of the class" (Moller, 2007). However, it is a question that needs to be asked. If the U.S. had a Chernobyl-type accident and a private firm had to pay damages for it, it might be possible to establish damages for a class that large by having individual plaintiffs provide proof of damages to an independent auditor or something similar, but in an employment discrimination suit where each specific decision becomes very dependent upon specific facts, it seems that Moller's concerns about constitutionality are particularly relevant. For the most part, in these lawsuits, a defendant's employment practices, like Wal-Mart's, will be " implemented in a highly decentralized fashion and so may have played out differently from department to department, or from employee to employee, in a way that resists reliable aggregate measurement" (Moller 2007).

Finally, it is critical to consider the inherent conflicts that arise in class action lawsuits, particularly when looking at a class the size of the Wal-Mart class. There are different degrees of sexual harassment, class members have different interests, and some may be more worried about principle, while others may need rightfully awarded monetary damages for survival. There are some estimates that, "conflicts occur in about one-fifth of multiple plaintiff cases, though…they were usually resolved and rarely were disqualifying. Intra-plaintiff conflicts could be most acute at settlement, where one client had a stronger case or one client favored settlement while the other was adamant about proceeding" (Cummings, 2011). The greater the number of plaintiffs, the less the likelihood of agreement. More importantly, the greater the number of plaintiffs, the less likelihood that any individual plaintiff outside of the class of named plaintiffs will have any ability to influence the settlement or trial decisions. Because of the above-stated reasons, class action lawsuits for employment discrimination with a potential plaintiff class as large and as varied as the one in Dukes are not the appropriate means of settling those conflicts, and the Supreme Court's decision, which may have seemed to favor the Goliath over the Davids, actually reflects sound judicial reasoning rather than corporate favoritism.

References

Cummings, S.L. (2011). Privatizing public interest law. UCLA Public Law Series. Retrieved January 25, 2012 from eScholarship website:

http://www.escholarship.org/uc/item/0q7515ht

Epstein, R. (2003). Class actions: Aggregation, amplification, and distortion. University of Chicago Law Review, 70, 475-518.

McKinney, C. (2011, June 20). Supreme Court blocks class action sex discrimination suit.

Retrieved January 25, 2012 from Texas Employment Law Blog website: http://www.texasemploymentlawblog.com/2011/06/articles/sexual-discrimination/supreme-court-blocks-class-action-sex-discrimination-suit/

Moller, M. (2007). The anti-constitutional culture of class-action law. Regulation, 50-58.

Stone, K. (2008). The future of labor and employment law in the United States. Institute for Research on Labor and Employment. Retrieved January 25, 2012 from eScholarship website: http://www.escholarship.org/uc/item/6w3620jj?query=class%20action%20employment%20discrimination#page-1 READ MORE

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