Several years ago, an executive based in Europe saw a news story about Dukes v. Wal-Mart, the monster class action involving every female worker at the retailer. Dukes was gutted by the U.S. Supreme Court in 2011, but it served as a wakeup call to the CEO, who recognized no discrimination in his ranks but understood that a shortfall of females or other protected classes at the executive level could provide fodder for a nationwide Title VII claim. He set about to have outside counsel review the situation. He slept better.
But in the meantime, plaintiffs’ lawyers had mobilized on a different front: They seized on potential wage and hour violations implicating 50,000 of his U.S. workers and going back three years. These violations would not require plaintiffs to prove intent — always a tough battle in a discrimination case. No, in a wage and hour case, the burden of proof would be on the employer.
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