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Discrimination Class Actions: Will the Tide Turn?

Not long after the Wal-mart v. Dukes Supreme Court decision limited discrimination plaintiffs’ ability to pursue class actions, legal commentators began signaling the demise of nationwide class action lawsuits.  In Dukes, six women brought gender discrimination claims against the company seeking to pursue a class action.  They asserted that all female employees were discriminated against in promotion and compensation practices.  After the Ninth Circuit affirmed the District Court’s ruling in favor of class certification, Wal-mart appealed and the Supreme Court reversed, stating that there was a lack of commonality among all female Wal-mart employees and explaining hat each plaintiff must prove that he or she suffered the same injury, not merely a violation of the same laws.

While the Wal-mart ruling has often been cited as the death  knell nationwide discrimination class actions, the plaintiffs’ employment litigation bar continues to test the bounds of the ruling.  This past Monday in the Southern District of New York, plaintiffs’ lawyers in the case of Da Silva Moore et al v. Publicis Groupe et al filed a motion for class certification alleging a common practice of gender discrimination for certain female Publicis employees.  The plaintiffs claim that Publicis violated the FMLA, the Equal Pay Act, and the FLSA by engaging in discriminatory practices against the class of women on a company wide basis.  Plaintiffs’ attorneys seem very confident that they will be granted class certification, stating that there are uniform company policies and centralized company decision making procedures that are at the core of the gender discrimination claims. 

The Da Silva Moore case may differ from the Wal-mart case with respect to the nature of proof offered in support of class certification.  In the Court’s Wal-mart opinion, Judge Scalia explained how plaintiffs could demonstrate that an injury is common across a nationwide group.  If plaintiffs show that the employer utilized a “biased testing procedure” or if there is “proof that an employer operated under a general policy of discrimination,” or that the discriminatory practices were executed in the “same general fashion through subjective decision making processes,” the plaintiffs may establish the necessary element of commonality.  While the plaintiffs’ attorneys did not provide such evidence in the Wal-mart case, instead offering evidence of practices which differed by manager or region, plaintiffs’ attorneys in the Da Silva Moore case have focused their proof on centralized company policy and decision making procedures.  If class certification is granted for plaintiffs in the Da Silva Moore case, the tide may turn for those seeking to bring discrimination class action lawsuits, at least with respect to those capable of making a similar offer of proof.




Christopher Davis is an experienced employment litigator specializing in class actions, overtime wage recovery, discrimination, whistleblower retaliation, and Wall Street bonus disputes. Before entering private practice, Mr. Davis served as an Assistant District Attorney in the Manhattan District Attorney's Office where he prosecuted violent crimes as a member of the Sex Crimes Unit.

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