I. The Case Law Effects
More than a decade of case law interpreting and applying the Dukes decision shows that it has reshaped rather than ended employment class-action practice. In particular, subsequent cases have filled in the details on three open questions in Dukes’ wake: how to establish commonality, how to handle class-wide remedies, and when and how to allow expert testimony.
A. Commonality
In Dukes, class representatives sought to certify a class of nearly 1.5 million current and former Wal-Mart employees who experienced sex discrimination in pay and promotion. Class representatives claimed that they were paid less than male co-workers, denied opportunities for advancement, and singled out for scrutiny when they complained. They alleged both a disparate impact claim—that a policy of unstructured local discretion within a culture marked by gender stereotyping and implicit bias disproportionately disadvantaged female employees—and a disparate treatment claim—that Wal-Mart knowingly failed to take any action to stop the discriminatory discretion. The Supreme Court reversed the lower courts, holding that the plaintiffs did not meet the test to certify a class action under Federal Rule of Civil Procedure 23, due to both a failure to meet the “commonality” requirement under Rule 23(a) and the need for individual remedies to resolve the case, prohibited by Rule 23(b)(2).
Writing for the Court, Justice Scalia explained that “[t]he crux of this case is commonality—the rule requiring a plaintiff to show that ‘there are questions of law or fact common to the class.’” This, he explained, requires the plaintiff class to show that “[t]heir claims . . . depend upon a common contention . . . of such a nature that it is capable of classwide resolution,” meaning “that [it] is central to the validity of each one of the claims in one stroke.” For a case in which the challenged policy was one of widespread discretion to managers to make subjective decisions, the plaintiffs could have met commonality with “[s]ignificant proof” that Wal–Mart “operated under a general policy of discrimination.” But, as the Court held, plaintiffs’ statistical, anecdotal, and expert evidence did not suffice: the anecdotal evidence was too limited and the statistical evidence too aggregated to establish a pattern or practice of discrimination common to 1.5 million class members. And the Court disregarded the expert’s general causation testimony that “Wal-Mart has a ‘strong corporate culture,’ that makes it ‘vulnerable’ to ‘gender bias,’” because it could not answer the specific causation question of how often it did so. “Respondents have not identified a common mode of exercising discretion that pervades the entire company—aside from their reliance on [their expert’s] social frameworks analysis that we have rejected.” As the Court explained it, the plaintiffs lacked “some glue holding the alleged reasons for all those [subjective] decisions together,” thus failing to “produce a common answer to the crucial question why was [each employee] disfavored.”
In the wake of Dukes, then, Title VII systemic disparate treatment class actions require stronger “glue.” Subsequent cases have provided several examples. First, plaintiffs may raise Dukes-style arguments, but do so on behalf of smaller classes of plaintiffs for whom there were fewer discretionary decisionmakers. Dukes plaintiff class members tried this approach themselves, breaking their nationwide class action into smaller regional cases. In one case on remand, a smaller group of plaintiffs from mostly California stores survived a motion to dismiss by alleging evidence of gender bias during store manager training. Plaintiffs suggested that company leaders gave the impression that “men had traits that were more likely to make them successful” and “cautioned that efforts to promote women could lead to the selection of less qualified candidates.” While “the basic theory of Plaintiffs’ claims has changed little,” the court held that this evidence responded to the Supreme Court’s holding in the initial case on “inadequacy of [plaintiffs’] proof.” Yet even this smaller class later lost their motion for class certification, held to be still too large to meet the commonality requirement. A series of other regional mini-Dukes cases also failed, unable to overcome the pall of Justice Scalia’s strong opinion in Dukes requiring significant and clear proof that discretion was exercised similarly.
Other cases involving discretion and subjective decisionmaking have been successful where plaintiffs can show that a smaller group of decisionmakers exercised more control over discretionary decisions or did so in a more uniform way. For example, in Ellis v. Costco Wholesale Corp., the plaintiffs alleged claims very similar to those in Dukes, seeking to certify a nationwide class of only 700 current and former female Costco employees who experienced sex discrimination in promotions. The plaintiffs argued that Costco’s largely discretionary system of subjective decisionmaking for promotions created both a pattern and practice of disparate treatment and a disparate impact by sex, denying them promotions to managerial positions. The evidence showed that Costco lacked “any written policy explaining to employees the criteria to be considered for promotion,” any “written guidelines explaining how candidates should be selected” for promotion, and any requirements for interviewing and materials to be reviewed before promotion. Nevertheless, the initial district court judge found that Costco applied its discretion to make promotions in a uniform enough way to satisfy commonality: despite the reliance on discretion, “the process involves decision-making by central management” in exercising this discretion, providing “sufficient evidence of a uniform promotion practice that caused this classwide gender disparity.”
After the Ninth Circuit questioned whether this met the “rigorous analysis” required by Dukes, the district court on remand found, again, that commonality was satisfied. The Ellis plaintiffs were able to provide exactly the “glue” the Court had said was necessary for commonality in Dukes: “[s]ignificant proof that an employer operated under a general policy of discrimination . . . manifested . . . in hiring and promotion practices in the same general fashion, such as through entirely subjective decisionmaking processes.” It was “this ‘common direction’ and the identification of specific practices” and “the smaller size and scope of the class” that made the difference. Additional statistic evidence and evidence of “cultural and cognitive bias” supplemented the plaintiffs’ “concrete evidence of companywide policies and practices.”
Likewise, in Scott v. Family Dollar Stores, the Fourth Circuit reversed a district court’s grant of a motion to dismiss and denial of plaintiffs’ leave to amend because it was based on an “erroneous interpretation” of Dukes that class cases based on subjective decisionmaking arguments like those in Dukes could never satisfy commonality for class certification. The Scott plaintiffs challenged four companywide policies around pay-setting that set store managers’ pay unfairly by sex and perpetuated those disparities forward over time. The policies were marked by “subjectivity and gender stereotyping,” the plaintiffs alleged, creating both a disparate impact by sex and a pattern or practice of sex discrimination. Such claims were not, in fact, “foreclosed” by Dukes, the Fourth Circuit held; instead, “even in cases where the complaint alleges discretion, if there is also an allegation of a company-wide policy of discrimination, the putative class may still satisfy the commonality requirement for certification.” Dukes focused on “the exercise of discretion by lower-level employees.” Commonality was “more likely to [be] satisf[ied]” where, as in Scott, “discretionary authority exercised by high-level corporate decision-makers . . . is applicable to a broad segment of the corporation’s employees.”
Indeed, as the Fourth Circuit reaffirmed in Brown v. Nucor Corp., while the Court in Dukes may have “recalibrated and sharpened the lens through which a court examines class certification decisions,” it left intact the traditional model for proving pattern or practice disparate treatment claims under Title VII established in the foundational 1977 cases of Teamsters v. United States and Hazelwood School District v. United States. Thus, as in Brown, the plaintiffs’ anecdotal and statistical evidence of widespread racial hostility and disparity in promotion rates could still serve as “significant proof” where it showed that how discretion was exercised amounted to a general policy or pattern of discrimination, to support commonality and class certification. Brown involved “approximately 100 class members in a single steel plant,” whose anecdotal and statistical evidence showed an “atmosphere of systemic tolerance of racial hostility by managers and supervisors, forming part of the overall pattern or practice that ‘infected black employees’ promotion opportunities’”—and “thus provide[d] precisely the ‘glue’ of commonality that Wal-Mart demands.”
Beyond cases addressing commonality in disparate treatment pattern or practice cases, numerous cases have clarified that, in the alternative, disparate impact cases may still meet commonality for class certification—and may do so easily. In Dukes, the Court had left in place its long-standing precedent in the 1988 case of Watson v. Fort Worth Bank & Trust that a policy of leaving pay and promotion decisions to managers’ discretion could give rise to a disparate impact claim. The Seventh Circuit wasted no time in applying this holding in McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., decided the year after Dukes and applying Dukes to reverse a denial of class certification alleging disparate impact claims. There, the court held that, a companywide policy of delegated discretion to form teams and make assignments “with a good deal of autonomy, though only within a framework established by the company” was enough to meet commonality. When the policy resulted in a disparate impact by race limiting the compensation of 700 Black brokers, the brokers could pursue their case as a class action.
Other disparate impact cases have followed suit. For example, in Chen-Oster v. Goldman Sachs, because they were “specific” and “companywide,” even policies that relied on discretion and subjectivity, like a “360-degree review” evaluation process and a “tap on the shoulder” selection process for promotions, were enough to satisfy commonality to support the plaintiffs’ claims of disparate impact by sex. “It is true that an individual manager’s decision might be more or less discretionary,” the court explained, “but this, as the Supreme Court made clear in Dukes, does not doom a class, since this discretion would have been exercised under the rubric of a company-wide employment practice.” Similarly, in Calibuso v. Bank of America Corp., where “the discretion afforded to individual lower level supervisors” was exercised within “common compensation and account distribution systems [that] rely on criteria that systematically favors male [employees],” female financial advisors could pursue their disparate impact claims as a class. “Dukes did not foreclose all class action claims where there is a level of discretion afforded to individual managers and supervisors,” the court reiterated. Here, the court explained, “the implementation of company-wide procedures” allowing discretion created a disparate impact “because the criteria used by individual managers [was] flawed.”
Read together, these and other cases decided since the Dukes decision establish that, while it may be more difficult to pursue a class action for Title VII claims involving subjective decisionmaking or supervisorial discretion, it is still possible. A decade’s worth of case law provides parameters for how such plaintiffs may offer “significant proof” that suffices as the “glue” to establish commonality under Rule 23(a)—certainly for disparate impact claims and possibly for more discrete pattern or practice claims alleged under Title VII.
B. Remedies
Beyond the question of commonality, the Supreme Court’s second major holding in Dukes related to the issue of class-action remedies. In their claims of systemic sex discrimination in promotion and pay, the Dukes plaintiffs sought declaratory and injunctive relief, backpay, and punitive damages, but not compensatory damages. The plaintiffs chose this route based on prior case law holding that, where individualized remedies were “incidental” to common questions of law, a class could be certified under Rule 23(b)(2). Doing so offered a procedural advantage: Rule 23(b)(2) opts all eligible class members in automatically, but only applies to class certification seeking primarily injunctive or declaratory relief. The Court held, unanimously on this issue, that claims seeking backpay as a remedy could not be certified under Rule 23(b)(2) and must, instead, be certified under Rule 23(b)(3) “at least where (as here) the monetary relief is not incidental to the injunctive or declaratory relief.”
While avoiding the question of whether claims seeking any monetary damages must be excluded, the Court held that Rule 23(b)(2) “does not authorize class certification when each class member would be entitled to an individualized award of monetary damages,” such as backpay. Thus even without seeking other compensatory damages, the plaintiffs could certify a class seeking backpay damages only under 23(b)(3)—the proper mechanism where common class issues “predominate” and class treatment “is superior to other available methods for fairly and efficiently adjudicating the controversy.” Rule 23(b)(3) also requires class members to receive notice and the chance to opt out of the class, which the Court found necessary to comport with due process where a class alleges “individualized monetary claims” that may include compensatory damages that would otherwise be precluded if the plaintiffs’ class was certified under 23(b)(2).
In so holding, the Court reaffirmed a second precedential issue from Teamsters: class actions requiring individualized monetary damages could be litigated in two stages. As it explained:
We have established a procedure for trying pattern-or-practice cases that gives effect to these statutory requirements. When the plaintiff seeks individual relief such as reinstatement or backpay after establishing a pattern or practice of discrimination, “a district court must usually conduct additional proceedings . . . to determine the scope of individual relief.” . . . At this phase, the burden of proof will shift to the company, but it will have the right to raise any individual affirmative defenses it may have, and to “demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.”
This the Court distinguished from the “trial by formula” approach of the court of appeals, in which a special master would determine the percent of valid claims and the average backpay award for a sample subset of class members, which would be “applied to the entire remaining class . . . to arrive at the entire class recovery . . . without further individualized proceedings.” The Court squarely rejected that approach, but otherwise provided no further specifics on the two-stage Teamsters approach that it left in place.
In the decade since, most employment discrimination class-action claims have been pursued under Rule 23(b)(3) or, building on the bifurcated model, as “hybrid” class actions certifying class-wide liability under 23(b)(2) and then, separately, individual remedies under 23(b)(3). While Rule 23(b)(3) requires that “questions of law or fact common to class members predominate over any questions affecting only individual members,” courts have held that class issues may still predominate when damages need to be determined individually. Moreover, even where a defendant may raise individual defenses to liability, class issues may predominate if common evidence can answer whether the defense is available against those plaintiffs for whom it is raised. Since Dukes, Title VII plaintiffs have successfully certified hybrid class actions seeking liability and injunctive relief under 23(b)(2) and damages and other individual relief under 23(b)(3) in cases alleging disparate impact and pattern or practice disparate treatment claims.
The Supreme Court reaffirmed that the need for individualized treatment at the remedial phase may not necessarily defeat predominance in its 2016 case, Tyson Foods Inc. v. Bouaphakeo, in which the Court upheld class certification for a class of meat packers seeking unpaid overtime. While the case involved claims under the Fair Labor Standards Act (FLSA), rather than Title VII, the Court applied the approach of Rule 23 and held that “representative proof from a sample, based on an expert witness’s estimation of average time that employees spent donning and doffing protective gear, could be used to show predominance of common questions of law or fact.” Acknowledging that “a representative sample is [often] ‘the only practicable means to collect and present relevant data’ establishing a defendant’s liability,” the Court held that, where a common policy applied to all employees, some employees may have individual or even no damages did not defeat predominance for class treatment.
Alternatively, where common questions predominate for some, but not all, issues or claims, plaintiffs may certify a subset of class issues under the separate mechanism of Rule 23(c)(4). Rule 23(c)(4) allows a court to certify “a class action with respect to particular issues” where “appropriate” and where doing so would “advance [the] resolution of the underlying” case or claims. As such, 23(c)(4) operates not only to allow courts the discretion to bifurcate liability and damages with hybrid 23(b)(2) and 23(b)(3) class actions as described earlier, but also to allow certification with respect to any specific issue in the case. For example, in Buchanan v. Tata Consultancy Services, Ltd., the plaintiffs sought to certify damages classes under 23(b)(3) alleging race and national origin discrimination in hiring and termination or, “[i]n the alternative, . . . to certify a class pursuant to Rule 23(c)(4) for the purpose of resolving three particular issues[:] (i) whether [defendant] engages in a pattern and practice of discrimination and the availability of (ii) punitive damages and (iii) injunctive relief.”
This approach was neither raised nor played a role in Dukes; but it was endorsed by the Seventh Circuit in McReynolds. There, the court allowed the class to certify under 23(c)(4) for the purpose of “deciding a common issue [of] whether the defendant has engaged . . . in practices that have a [racially] disparate impact,” and under 23(b)(2) for the purpose of “providing injunctive relief.” The court allowed this conclusion despite that the plaintiffs also intended to seek compensatory and punitive damages, but deferred certifying such issues under Rule 23(b)(3) until after the case was remanded. Thus, while Dukes foreclosed class treatment of cases with all but the most limited damages under 23(b)(2), plaintiffs still have options under 23(b)(3) or 23(c)(4) for seeking class treatment, even where class members require some individualized damages or defenses.
C. Experts at Class Certification
A final doctrinal legacy from Dukes relates to when and how expert evidence may be used in class certification. When the Dukes plaintiffs relied on expert testimony to help establish commonality under Rule 23(a), Wal-Mart argued the evidence did not meet standards for qualifying an expert under Federal Rule of Evidence 702 and long-standing precedent of Daubert v. Merrell Dow Pharmaceuticals, Inc. Under Daubert, parties must brief, and a reviewing court must consider, whether an expert’s testimony is reliable and methodologically sound, considering such factors as if the methodology has been tested and peer-reviewed, and if it is accepted within the scientific community, and its potential error rates. This normally happens well into the discovery phase of litigation; the question Dukes raised was whether it must occur earlier in a class action. In Dukes, the district court rejected Wal-Mart’s challenge, holding that “Daubert did not apply to expert testimony at the certification stage of class-action proceedings.” On appeal, however, the Supreme Court opened the door to such a requirement, by “doubt[ing] that is so,” before rejecting the expert’s evidence on other grounds, as unhelpful to the plaintiffs’ case.
In the wake of Dukes, courts are divided on whether Daubert applies to expert testimony at the class-certification stage. A number of courts, including those in the Third, Seventh, and Eleventh Circuits, have held that, where the proposed expert testimony is necessary to determine class-certification issues, it must be subject to a full Daubert analysis at class certification. Others, including the Second and Fifth Circuits, have not weighed in clearly on the issue but applied the Daubert analysis in particular cases at class certification. Still others, including the Eighth and Ninth Circuits, have made clear that, while a focused or partial consideration of Daubert issues at class certification may be appropriate, the analysis should go to the reliability or weight of the evidence in the context of certification rather than determining its admissibility.
While being required to meet the Daubert standard before even certifying a class heightens the challenge that plaintiffs face at the outset of any Title VII class action, this issue also relates to a bigger sea change: after Dukes, where is the line between class certification—which used to be a preliminary inquiry—and the underlying merits of any Title VII class-action case? The Court, itself, invited this confusion, noting in Dukes that “proof of commonality necessarily overlaps with respondents’ merits contention that Wal-Mart engages in a pattern or practice of discrimination . . . because . . . the crux of the inquiry is ‘the reason for a particular employment decision.’”
That the Court could, and should, reach deeper into the merits of the case to determine commonality for class certification under Rule 23(a)(2) was the basis for the four-justice dissent. Writing for the dissent, Justice Ginsburg criticized the majority for “import[ing] into the Rule 23(a) determination concerns properly addressed in a Rule 23(b)(3) assessment,” which focused the inquiry in Dukes on differences rather than similarities between class members, thus defeating certification. Yet the majority’s reframing of commonality ruled the day, requiring future plaintiffs to adapt by drawing any class more tightly.
As demonstrated by these three trends—the intensification of commonality under Rule 23(a), the need for 23(b)(3) or hybrid certification for damages claims, and the possibility of having to litigate Daubert issues as early as class certification—the doctrinal implications of Dukes have been significant. Each poses a significant new legal hurdle for plaintiffs seeking to pursue Title VII class actions. And while, given the right facts and circumstances, each hurdle may still be scaled, it is the combination of all three that wrought major practical implications for Title VII class actions today, to which the next Part turns.
II. The Practical Effects
The doctrinal changes wrought by Dukes for Title VII have had perhaps their biggest impact on the practice of class-action litigation. Prior to Dukes and its progeny, class certification was treated as an early and limited inquiry—a preliminary procedural question of whether it made sense to pursue claims as a class rather than individually. When combined, the doctrinal changes have blurred the lines between certification questions and liability or merits questions. As a practical matter, class certification has been pushed much later in most cases, closer in time to any determination of an employer’s underlying liability. Plaintiffs’ class counsel may now be required to provide notice to all potential class members, conduct more significant discovery on commonality, and fully brief any expert testimony that it intends to use before even knowing if the class may be certified. As a result, class cases are now much more expensive to pursue, with significant investment in discovery costs by both parties earlier in any litigation. Most class-action cases now turn on whether certification is granted, after which an employer is more likely to settle.
Unsurprisingly, in the first few years after Dukes, there was a shock to the system, and the number of Title VII class action claims filed dropped precipitously. In 2013, two years after decision, investigative journalist outlet Pro Publica reported (relying on data from Seyfarth Shaw and the Impact Fund) that the combined top ten settlement amounts from employment class actions dropped by over eighty-five percent, from $345 million in 2010 to $45 million in 2012, and that the annual number of new employment discrimination class actions filed dropped by about half, from twenty-five or thirty before Dukes to ten or twelve several years after.
Yet as time passed, the initial jolt subsided, and plaintiffs’ attorneys began to adapt. Certainly, the types of Title VII class actions filed are now different than those filed prior to Dukes: due to increased costs, plaintiffs’ attorneys are more selective; classes tend to involve fewer potential members and be more targeted geographically; and statistical and other evidence must be strong and developed from the outset. But, while class actions may be different qualitatively, they have rebounded quantitatively. Seyfarth Shaw’s most recent Workplace Class Action Litigation Report documented that the top ten settlements in employment-related class actions in 2021 amounted to a combined $3.19 billion, a steady increase since 2018, and an all-time high in the firm’s tracking. The number of certification rulings in employment discrimination class actions rose to eighteen, and most resulted in certification, with seventy-two percent of employment discrimination and eighty-one percent of wage and hour cases granted certification in 2021. Of course, this success likely reflects the reality that plaintiffs’ attorneys must be more strategic and may be pursuing a larger number of targeted cases that are more likely to succeed. Regardless, they are succeeding.
Just as the dust may be settling in the area of class-action certification, however, another challenge to Title VII class actions has arisen: mandatory pre-dispute arbitration agreements that require a waiver of class claims. While Dukes and its progeny were reshaping the landscape of class-action certification standards, a separate line of Supreme Court jurisprudence was upholding even adhesive pre-dispute arbitration agreements against a series of increasingly serious legal challenges. As it relates to employment claims, this culminated in the 2018 decision in Epic Systems Corp. v. Lewis, in which the Supreme Court held that, because of the Federal Arbitration Act, employees may be forced to waive their right to any class-wide relief, despite the National Labor Relations Act’s protection for employees to act in concert for their own “mutual aid or protection.”
The issue of mandatory arbitration of employment claims is well beyond the scope of this Article; the point here is to highlight that, in the wake of Epic Systems, there was a huge increase in employers using arbitration agreements that bar class claims entirely. Today, studies estimate that over half of all non-unionized private employers and nearly two-thirds of all larger employers require mandatory arbitration agreements, at least thirty percent of which include class-action waivers. This means that most employees may now be barred from even trying to pursue a class action to litigate systemic employment discrimination claims. Plaintiffs’ attorneys have adapted to this challenge as well, pursuing class arbitration where litigation, but not class claims are barred, and, where any class-wide relief is barred, filing thousands of individual arbitration claims on behalf of would-be class members, each of whose fees must be borne by the employer. Yet class or mass arbitration remains an unwieldy and imperfect alternative to class-action litigation, designed in part to spark employers to reconsider adopting class-action waivers in the first place.
III. The Administrative Response
Finally, to fold in the theme of the conference requires considering the role that the executive branch agencies most responsible for enforcement of Title VII—including the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP)—should play in responding to Dukes. While plaintiffs’ attorneys have adapted, there is no question that the legacy of Dukes has been to make it more difficult for workers to pursue private class-action claims to redress systemic employment discrimination. The Court’s interpretation of Rule 23 in Dukes made class certification more complex and more expensive. This limitation on access to the courts to pursue class actions was further exacerbated by Epic Systems and the rise of mandatory class-action waivers.
The most direct administrative response to these doctrinal developments is for the EEOC to increase its own enforcement of systemic discrimination claims on behalf of employees who may have difficulty meeting Rule 23 after Dukes. Importantly, the EEOC can bring systemic cases on behalf of a class of employees without having to seek certification under Rule 23. Much of the early academic response to Dukes called for the EEOC to increase systemic enforcement. The EEOC describes systemic enforcement as a priority, but the number of lawsuits that the EEOC has filed annually in the decade since 2011 has been consistently lower than in the decade prior, and systemic charges and claims filed have actually decreased slightly in each of the past three years. Certainly, there is room for improved enforcement here.
Yet executive branch responses to Dukes’ legacy need not be only ex post enforcement of the law against widespread violations. An equally important role for any administrative agency when class-wide enforcement has become difficult is to require or incentivize ex ante compliance with federal employment laws. The practice of using discretionary and subjective decisionmaking to determine pay and promotions remains widespread among employers and is unlikely to change; administrative interventions to help cabin this discretion when the entity fails to do so itself are needed. Here, the Biden administration has the chance to make a significant contribution.
In particular, efforts to enhance that the data the EEOC and OFCCP collect on employer pay by race, gender, and ethnicity can help those agencies track inequality and encourage employer compliance with antidiscrimination law. The EEOC under the Obama administration began the process of doing this, adding more granular data on pay, job, and protected characteristics to existing employer EEO-1 reporting requirements. After being halted during the Trump administration, then reinstated by a lawsuit, the temporary measures expired and were not renewed in 2019. The EEOC enlisted the National Academies of Sciences to evaluate the data that was collected for 2017 and 2018. The National Academies concluded that the additional data collected could help the EEOC “prioritize investigations and the allocation of resources,” providing important information on employers being investigated, how employers compared to their peers, and “for systemic investigations.” It also offered recommendations for revising and improving data collection in the future, which the Biden administration is reportedly considering. Meanwhile, in 2022, the OFCCP under the Biden administration reasserted its own position that it could use compliance requirements and desk audits to ensure equal pay. Beyond these efforts, the Biden administration could also pursue, at the federal level, other regulations recently enacted by state legislatures that help rein in the operation of discretionary bias, including measures to require employers to, for example, report confidential harassment settlements to relevant agencies or post pay ranges for available jobs in any job advertisement or listing.
Where Dukes has made challenging systemic discrimination more difficult for workers themselves, the administrative agencies responsible for enforcing workplace antidiscrimination laws can step in to require more accountability from employers. Federal agencies can both increase enforcement of systemic discrimination claims on behalf of employee classes ex post and increase regulatory requirements that require employers to detect and correct biases in their own operations ex ante.
Conclusion
In the decade since the Supreme Court decided Wal-Mart Stores Inc. v. Dukes, class-action employment litigation has evolved. Litigators are often forced to adapt to new case law; when the initial shock of the Dukes decision wore off, they did. To litigate a class action today may require a smaller, more narrowly drawn employee class, bifurcation to address remedies, and, in some courts, expert qualification at an earlier stage. But while litigators have adapted, it is important not to understate the impact of the Dukes decision. All of these developments require more time and cost to litigate a class case upfront and sometimes multiple smaller class actions against the same defendant. It was never easy for plaintiffs to bring employment class actions successfully; it is even more difficult—and expensive—now.
Meanwhile, the employment litigation ground shifted in another important way: the rise of mandatory pre-dispute arbitration agreements requiring class-action waivers. Again, plaintiffs’ lawyers are adapting to this challenge by, for example, filing class arbitrations when available or individual arbitrations en masse when not. But the combined impact of the two trends away from class actions seriously hampers the ability of employees to pursue their workplace rights collectively. For this reason, federal administrative agencies charged with enforcing antidiscrimination law have become even more important, not only to redress systemic discrimination after the fact, but to encourage greater employer attention to bias in the workplace before it can lead to a plaintiff class.
