ALM Properties, Inc.
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Workplace Class Action Litigation Report Outlines a Post-Dukes World
Any employer who wondered what effect the U.S. Supreme Courts Wal-Mart Stores Inc. v. Dukes gender discrimination case would have on private class action cases neednt look any further than the top 10 employment discrimination class action settlements of 2012. At roughly $49 million in settlements, that total came in at the lowest level since 2006 and was far shy of the pre-Dukes total of $346 million in 2010.
Both cases were widely cited throughout the lower courts last year. Concepcion fed significant litigation over workplace arbitration agreements. In those cases, like with real estate, says Maatman, location, location, location is everything. He says, There are cases going both ways and judges going both ways, even within the same jurisdiction, adding that the final chapter hasnt been written.
The heightened activity was particularly apparent at the U.S. Equal Employment Opportunity Commission. According to the report, more discrimination charges were filed with the EEOC in 2012 than in all but one previous year since the founding of the commission: 99,412 charges against private sector employers. Although the EEOC filed half the number of lawsuits as in 2011, Maatman says the EEOC is focusing on its systemic investigation program. Basically, the EEOC caught its breath in 2012 says Maatman. He thinks the agency is gearing up to bring more, and higher-stakes, lawsuits in 2013. If youre involved in litigation with the EEOC in 2013, I think youve got a tiger by the tail. Its very difficult to defend one of those cases.
The SCOTUS decision helped employers defeat and devalue discrimination class actions, and it resulted in fewer and lower-cost settlements.
When the economy is such that its harder to find another job after an employee has been terminated, Maatman says, there is no economic disincentive to sue.
We saw an inability of employers to utilize the lessons of [Dukes] to defeat, fracture, or break up wage-and hour-class actions, according to Maatman. Everybody thinks the wave is going to crest, he says, but the reports authors predict the increasing trend will continue in 2013.
Youre seeing this shake-out period where plaintiffs lawyers are rebooting and retheorizing how they can still certify a case, says Maatman. So if youre an employer, youre basically saying, Dukes is out there, and I can utilize itrely upon itbut its not the last word.