On Tuesday morning, the United States Supreme Court will hear argument in Wal-Mart v. Dukes, an already-epic battle between the world's largest corporation and perhaps as many as one million current and former employees, all of them female, who as potential plaintiffs claim the giant retailer engaged in an unlawful pattern and practice of gender discrimination. It is easily one of the biggest cases of the Court's present term and, by many accounts, the biggest class-action discrimination case ever fought. Depending upon how extensively the justices rule, and no matter which side prevails, the Dukes case could dramatically alter the balance of power in civil cases between corporate defendants and the plaintiffs' bar.
The oral argument this week comes against the backdrop of a tiny boomlet of news stories reminding us that the conservative Court from time to time actually does side with employees over employers and against the legal interests of corporate America. In January, the Court ruled in favor of an employee who was fired after his fiancee' brought a sex discrimination case against their company. And just last week the Court twice ruled against employers; the justices helped an Army reservist who said he was discriminated against because of his military obligations and backed an employee who complained that his company's bosses put the timeclocks in the wrong place at work.
Whether they constitute a trend or not (and I say not), these cases represent mere footnotes in the annals of employment law compared with the potential impact of Dukes. Writing in the Harvard Law and Policy Review, professor Suzette M. Malveaux explained well last week in accessible language precisely what's at stake:
The potential impact of the case stems not so much from the size of the Dukes class as from how the case will influence the very survival of certain types of class actions. At issue is whether it will become more difficult for plaintiffs who seek monetary relief for systemic misconduct to meet the class action criteria. This is important because for many employees and others, a class action is their only meaningful access to the courts. Moreover, class actions are important to the civil justice system because of the substantial time and cost savings they provide the courts and parties. The Dukes case has the potential to redefine the terms on which this critical procedural device is available.
No matter what the justices say Tuesday, and no matter how they eventually rule, Wal-Mart already has largely succeeded in blunting the force of the allegations against it. The case will be 11 years old when it is decided by the Supreme Court and yet it is nowhere near trial, much less a plaintiffs' verdict that would be sustainable on appeal. This is so despite massive pre-trial discovery on the class-action issue alone, an exemplar of scorched-earth civil litigation which already has generated, by one litigant's count, "over 200 depositions" and the "production of more than a million pages," as well as "electronic personnel data."