U.S. Supreme Court’s Dukes Decision Doesn’t Stop New York Discrimination Case



Since the Supreme Court’s decision in Wal-Mart, Inc. v. Dukes captured the nation’s attention, many friends and colleagues have asked me if Dukes is the death knell for class actions or class action discrimination cases. The questions I was asked reminded me of how difficult it is for non-lawyers – and even lawyers who practice outside the class action field-to understand the effect of the Dukes decision. These inquiries also demonstrated, once again, the influence of the media on how we think about, and react to, the news.

Those of us who practice in the class action field know that Dukes speaks to a fairly narrow set of facts and issues. But that point seems to have been lost in the deluge of news reports and opinion pieces that followed the decision.

recent federal court decision involving alleged racially discriminatory treatment by the City of New York with respect to firefighter applications shows that Dukes did not leave people seeking to bring discrimination class actions without a remedy. In that case, the plaintiffs alleged that black and Hispanic firefighter applicants were not hired because  of discriminatory entrance exams. The judge rejected New York City’s attempt to use the Dukes decision to decertify the case.

Litigants will always try to use prior cases to argue their own positions. That is how our legal system works. But it is important to note that when high profile Supreme Court cases like Dukes come along, there is a tendency for people to overplay their hand. The New York City firefighters case is just one illustration that Dukes does not have a choke hold on discrimination class actions and that they can succeed after Dukes.

Abbey Spanier, LLP, located in New York City,  is a well-recognized national class action firm that focuses on employment law, securities law, consumer rights and antritrust cases.