Walmart Women Can't Bring Class Action for Sex Discrimination: U.S. Supreme Court

The much anticipated U.S. Supreme Court decision in Walmart v. Dukes was issued today.  The case involved a class action lawsuit filed on behalf of some 1.5 million Walmart employees alleging Walmart discriminates in pay and promotions against females.  The Supreme Court overruled the lower court and found that the class action did not satisfy the requisite test for class certification. Here is a nice early summary by Professor Marcia McCormick of St. Louis University Law School, from Workplace Prof Blog.
The issues are similar to those raised in recent Canadian class action lawsuits alleging unpaid wages, such as the Scotiabank case I mentioned last week.  However, the laws are not the same and the U.S. decision sets no legal precedent for Canada.  Friend of Doorey’s Workplace Law Blog, Professor Paul Secunda of Marquette Law School, is already calling the Supreme Court decision “a disaster for historically oppressed employees seeking large-scale workplace justice against their employers.”
The decision does not decide whether Walmart discriminates against women.  That issue has not be dealt with yet.  It just means that that female employees now need to proceed with a discrimination case individually, rather than as a collective.  Since few Walmart employees have the means to sue Walmart alone, the dismissal of the class action will effectively ensure that the merits of the allegation are never dealt with, except perhaps in the occasional one-off action.  That is why class action certification litigation is considered to be closely related to access to justice.  Here in Canada, we are watching cases like the Scotiabank carefully to see how our courts deal with these issues.  Stay tuned ….