Post-Dukes: Employment Class and Collective Action Decisions

On June 20, 2011, the U.S. Supreme Court fundamentally changed the certification analysis for large class actions. In a much-anticipated decision, the Supreme Court, in Wal-Mart Stores, Inc. v. Dukeset al., 564 U.S. ___ (2011), reversed the Ninth Circuit’s certification of a nationwide class of approximately 1.5 million current and former female Wal-Mart employees who alleged sex discrimination based on pay and promotions. In its decision, the Supreme Court raised the bar for plaintiffs seeking class certification, provided employers with a tool to fight class certification, and left appellate and district courts with the task of applying the Supreme Court’s post-Dukes standard.