Imagine being hit with a discrimination case that involves millions of class members and potential damages in the billions of dollars. In the wake of a recent 9th Circuit decision upholding certification of the largest discrimination class action in history, Wal-Mart faces just that nightmare.
The case, originally filed in 2001 by six female Wal-Mart workers led by Betty Dukes, an employee at a Pittsburg, Calif., store, now includes all women who worked at any of the 3,400 U.S. Wal-Mart stores at any time since 1998. That's potentially 2 million women, whom the suit alleges received lower pay and less opportunities than men.
Typically, courts have accepted expert testimony in class actions from statisticians and economists, but not sociologists. But the 9th Circuit gave its blessing to sociologists, stating that "social science statistics may add probative value to plaintiffs' class action claims." Experts from other disciplines take issue with that.
"There is no such thing as social framework analysis," says King, who has a doctorate in labor economics in addition to a law degree. "But it will be a challenge for defendants to persuade the court that what they regard as a methodology is not."
Pointing to the recent Supreme Court focus on limiting punitives in cases such as Philip Morris USA v. Williams, she adds, "I suspect [Dukes] would catch their eye, if it stands."
Meanwhile, employers can use the findings in Dukes to assess their vulnerabilities. For example, companies could test how their corporate culture would stand up to a sociologist's analysis. They also could look at how their decision-making processes can be made more objective and whether they have processes in place to ensure their managers implement non-discrimination policies.