Justice Scalia’s Employment Law Legacy

On February 13, 2016, Justice Antonin Scalia, the anchor of the Court’s conservative wing for nearly three decades, passed away.  He leaves behind a distinguished legal career that involved experience in wide range of roles.  After graduating from Harvard Law School, Justice Scalia entered private practice and then became a law professor at the University of Virginia.  He served in the Nixon and Ford administrations, eventually becoming Assistant Attorney General.  Scalia then began his judicial ascension when President Ronald Reagan nominated him to the United States Court of Appeals for the District of Columbia Circuit.  Soon thereafter, Reagan nominated Scalia to the Supreme Court to replace Justice William Rehnquist, whom Reagan had named to the Chief Justice position.  Scalia was unanimously confirmed.


Narrowed Dukes v. Wal-Mart Class Survives Motion to Dismiss

The ongoing saga of the more than decade-old sex discrimination class action against Wal-Mart (Dukes v. Wal-Mart) will continue after the federal district court handling the case allowed plaintiffs’ fourth amended complaint to survive a motion to dismiss in a ruling on September 21, 2012. In June of last year, the Supreme Court rejected the plaintiffs’ attempt to bring a nationwide class action against Wal-Mart, holding that the plaintiffs failed to satisfy Federal Rule of Civil Procedure 23(a) because they could not show sufficient commonality between the almost 1.5 million members of the class and reversing class certification. In response, the plaintiffs filed a fourth amended complaint in district court, narrowing their proposed class to several hundred thousand female Wal-Mart employees in four regions of California. Wal-Mart subsequently filed a motion to dismiss the new complaint, arguing (among other things) that it suffered from the same commonality problems as the class rejected by the Supreme Court.

The district court handling the case rejected Wal-Mart’s argument, finding that the Supreme Court took issue with plaintiffs’ evidence, not necessarily their theories and that plaintiffs should therefore have the opportunity to present evidence to demonstrate commonality among the new class members at the class certification stage. In particular, the district court noted that plaintiffs’ new complaint alleged that they could provide class-wide proof of a “culture and philosophy of gender bias shared by the relevant decision-makers,” citing to allegedly gender-biased comments made at management training meetings. The district court found that this allegation allowed the complaint to survive a motion to dismiss, while noting that the plaintiffs “still must prove that every decision-maker in the group—perhaps four hundred or so…operated under a common policy or mode of decision-making” to obtain class certification. So, although the district court found that plaintiffs’ theories do not fail as a matter of law, whether or not they will actually be successful in a renewed attempt at class certification is a different question entirely. For now, we will all have to wait to find out if the nation’s once largest sex discrimination class action can survive under the Supreme Court’s latest class certification ruling.