America, Class Actions, and Employment Law: a Q & A With Paul Secunda on Wal-Mart v. Dukes

Class actions are as popular as salsa south of the border and are quickly gaining popularity here in Canada with employee side counsel as a tool to resolve complex legal disputes where a large number of plaintiffs exist. With this in mind I contacted Paul Secunda, a labour law professor at Marquette University, to ask a few questions about the recent hearing at the United States Supreme Court in the case of Wal-Mart v. Dukes. Here's what he had to say:

The United States Supreme Court recently heard oral argument in Wal-Mart v. Dukes. Why should this case matter to the average person?

Whether in the United States or Canada, there are still significant power disparities in the workplace between workers and their employers. When employers have a global strategy of discriminating against a particular group of workers, like women, it is important that strategic class action litigation be able to hold the employer accountable.   The average person should care whether our society is potentially pervaded with unfair and arbitrary employment practices against a large segment of society.

Does Wal-Mart have a history of sex discrimination against employees?

The history of sex discrimination against female employees is well-documented in the case statistics in Dukes.  For instance, women comprise over 72% of Wal-Mart's sales workforce and less than 33% of its managers. A large amount of anecdotal evidence suggests that women seeking promotions have been told that women with children can't be managers and that women cannot effectively manage men.

How does this case fit into Wal-Mart's overall labour relations strategy?

Wal-Mart has always been considered one of the worst workplace offenders against the civil rights of employees in the workplace.  For instance, rather than allow independent and outside unions be established in the workplace, they have closed whole stores down.  This situation in fact happened in Canada a number of years ago.  On the non-union front, Wal-Mart has had to settle one of the largest wage and hour violations cases in the United States for over half a billion dollars.  To say that Wal-Mart is a serial offender concerning the workplace rights of its employees would not be an overstatement.

Canada also has a number of large sex discrimination class action lawsuits before the Courts. Are these types of lawsuits gaining popularity amongst Plaintiff counsel as a means to seek remedies for large numbers of employees?

Yes. In a large case like Dukes, it probably would not make sense for individual women to bring individual legal claims as most such claims would be in the $3000-$5000 range. The class action device aggregates those claims and works to put some substantial pressure on a giant employer like Wal-Mart to change their discriminatory workplace practices. 

What's your take on the likely outcome in Wal-Mart v. Dukes?

Unfortunately, I am not optimistic that the case will be decided in favor of the Dukes plaintiffs.  Because we have a 5-4 conservative Supreme Court in the United States, it is likely that a majority of the Justices will be unsympathetic to the plaintiffs employment discrimination claims.  I suspect a majority of the court will find some portion of the class certification order at issue in Dukes to be inappropriate. This probably will lead to additional litigation that will make it harder for these women to get workplace justice.  I wish I could be more optimistic, but current realities suggest otherwise.