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Big Questions about the Future of Class Action Lawsuits

Michael LeRoy, LERA member Professor, University of Illinois School of Labor & Employment Relations and College of Law

Lesley Wexler, Associate Professor, University of Illinois College of Law

On June 29, 2011 LERA member Michael LeRoy and Lesley Wexler discussed the Dukes v. Wal-Mart Supreme Court Decision on the WILL Focus program. Dukes v. Walmart Stores Inc. was a long-running sexual-discrimination class-action case that began in 2000. The plaintiff Betty Dukes, a 54 year-old California Wal-Mart worker, was joined by 1.5 million other female Wal-Mart employees who felt they had been discriminated against, denied promotions, and earned less than their male counterparts.

After a 10-year litigation trail, on December 6, 2010, the U.S. Supreme Court agreed to hear the Wal-Mart v. Dukes

appeal. On June 20, 2011, the Supreme Court ruled in Wal-Mart's favor on the basis of the majority opinion that the plaintiffs who joined Dukes in the class-action suit were too diverse a group to constitute a class.

LeRoy began the interview by asking "Why do comparably qualified women make only 80 percent of what a man makes?” but quickly pointed out that this case didn’t get to the bottom of that question. What ultimately happened was the ruling was made on technical grounds, not whether sexual discrimination took place. LeRoy and Wexler told listeners the door still open for class actions, but this class of 1.5 million was just too big.

LeRoy explained that the plaintiffs provided only 120 anecdotal accounts of employment discrimination from members of the class. How can you extrapolate from 120 stories to 1.5 million individuals? Illustrating the case with largely statistical evidence failed. The plaintiffs took a mass of data and said, why is this? The Court was skeptical of the social framework analysis — what background operating forces explain the statistics. If courts are going to be skeptical about this type of evidence, it makes class actions very difficult to adjudicate. 

Two of the reasons this case is so important to labor and employment scholars and practitioners is that holding large corporations accountable can affect change that is good for society. And people without means deserve access to court. Class action suits can provide this access. Click here to listen to the full interview to learn more about this important case.