The latest from Work Matters
- Hostility toward a racial group different than that to which the plaintiff belongs: Probative or not?
- U.S. Supreme Court rules in Wal-Mart Stores Inc. v. Dukes
| Hostility toward a racial group different than that to which the plaintiff belongs: Probative or not? | Top |
| A group of Hispanic employees sue for a racially hostile work environment. The question: Can they prove their case by evidence of race-based hostility towards black employees? This was the issue the 5th U.S. Circuit Court of Appeals looked at in Hernandez, et al, v Yellow Transportation Inc. The answer delivered on May 12 was a very qualified "maybe." The court's opinion notes that the district court's opinion was that the plaintiffs could not. The 5th Circuit's answer was "maybe" but only if "the hostility towards a racial group different than that of a plaintiff is in some fashion probative of the claim of hostility towards the plaintiff's category of workers." What would that look like? The 5th Circuit suggested it would be evidence of harassment directed towards black employees that would interfere unreasonably with the work performance of the Hispanic employees. What does that look like? The court did not say. Here, though, is a hidden gem in the opinion. The court reaffirmed its adherence to its 2007 decision in EEOC v. WC&M Enterprises Inc. In WC&M , the 5th Circuit remarked that, once a plaintiff establishes that a manager bears unlawful animus toward the plaintiff (national origin), then harassment not based on national origin (the same manager banging on the glass partition of the plaintiff's office) can support a hostile environment claim. Because the plaintiffs in Hernandez could not establish that the alleged non-race-based harassment was part of a pattern of race-based harassment, WC&M did them zero good. | |
| U.S. Supreme Court rules in Wal-Mart Stores Inc. v. Dukes | Top |
| Today, the U.S. Supreme Court released its long-awaited opinion on class actions, Wal-Mart Stores Inc. v. Dukes , an employer victory. The class was alleging that pay and promotion decisions at Wal-Mart were generally committed to the discretion of local managers and were exercised in a largely subjective manner. The class alleged that this set up resulted in sex discrimination and the 9th U.S. Circuit Court of Appeals approved a class of about 1,500,000 current and former employees, according to the high court's opinion. Recall the old Wendy's commercial where a dissatisfied customer asked a Wendy's competitor, "Where's the beef?" Well, Justice Antonin Scalia, writing for the court, said essentially, "Where's the glue?" In other words, where is the commonality between employment decisions made involving 1,500,000 employees? The whole idea behind a class action is that it is an efficient way to resolve numerous complaints of discrimination in one fell swoop, but only if there are common issues to be decided. Here, the court rejected the opinion of a sociological expert that Wal-Mart had a "strong corporate culture" that makes it "vulnerable" to "gender bias" as long on conclusions and short on specifics. What about statistical evidence showing a national or regional disparity between women and men? The Supreme Court rejected this evidence, as well, because it was subject to too many localized variations writing, "Some managers will claim that the availability of women, or qualified women, or interested women in their stores' area does not mirror the national or regional average." Again, no commonality. Finally, the class' argument that the fact that local managers had discretion over hiring was evidence of class discrimination was "just the opposite of a uniform employment practice that would provide the commonality needed for a class action. . . ." Remember the phrase from the economic meltdown, "too big to fail." In the Wal-Mart case, the class was just too big to be certified. It collapsed under its own weight. Class actions are still with us, but like a lot of other things, they will get downsized. By the way the court also addressed the more technical question of whether Federal Rule of Civil Procedure 23(b)(2), the provision permitting injunctive relief, also allows class treatment for back pay claims. The court said it did not. | |
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