Senator Al Frankin of Minnesota recently introduced a new bill to address the Supreme Court’s decision in Wal-Mart v. Dukes by restoring workers’ ability to challenge discriminatory employment policies and practices.
To bring an action on a class-wide basis requires establishing the four prerequisites of Rule 23(a) of the Federal Rules of Civil Procedure: there are legal or factual questions common to all class members (“commonality”), the class is sufficiently large (“numerosity”), the named plaintiff’s claims are typical of the class claims (“typicality”), and the class would be adequately represented by counsel and the named plaintiff (“adequacy”).
Before Dukes, establishing commonality required showing only that resolution of class members’ claims would depend on resolution of a common issue. It was not necessary to prove the merits of the case at this preliminary stage of litigation. The standard was well-settled and easily met in most cases.
However, since Dukes, the Supreme Court made it harder for workers to use Rule 23 to enforce the nation’s civil rights laws. To establish the commonality prerequisite of Rule 23(a) today requires showing “convincing proof.” This is an evidentiary standard typically reserved for a trial on the merits — not for class certification. As Justice Ginsburg explained in dissent, the Dukes decision “disqualifies the class from the starting gate.”
Senator Frankin’s bill would restore workers’ ability to challenge discriminatory employment practices on a class-wide basis by creating new a judicial procedure called “group actions,” the requirements of which are the same of existed under Rule 23 prior to Dukes.
We at the Abbey Spanier blog applaud the bill. A number of Supreme Court decision have been issued in the past several years that restrict the rights of employees, as well as consumers and investors, to vindicate their rights on a class basis. Corrective legislation, such as Senator Frankin’s bill, is an effective means to take back our rights.
Abbey Spanier, LLP, located in New York City, is a well-recognized national class action and complex litigation law firm.