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Employers Face Changing Class Action Landscape

Online exclusive: How to Protect Your Company From a Discrimination Class Action.

Within the space of four weeks this spring, decisions in three courts portended a more challenging class action landscape for employers to navigate in the years ahead.

Dukes' Hazards

The 9th Circuit's April 26 decision in Dukes v. Wal-Mart was the first of the game-changing decisions. Essentially, the court made it easier for plaintiffs to certify a class and harder for the company to defend itself.

Velez highlights the dangers of putting a case with dramatic albeit anecdotal evidence before a jury. At the trial alleging discriminatory treatment in pay and promotions, one witness testified to being sexually assaulted at a company outing for doctors. She also said that when she reported the assault, her manager and a human relations representative criticized her and blamed her for the incident. Defense testimony about policies and procedures that put the pharmaceutical giant on Working Mother's list of "best places to work" for the past decade paled in comparison.

"Anecdotal evidence will carry the day" in employment discrimination jury trials, according to Barbara Hoey, a shareholder at Littler Mendelson. "Yes, the jury will listen to statisticians; the jury will look hard at policies and procedures and the explanations experts give them about how evaluations are done. But you can't underestimate the fact that jurors are people who have jobs, or people who once had jobs. They expect their employer will treat them with a certain degree of respect, and will be responsive to them when they have a problem."

Senior Editor

Mary Swanton

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