Has America progressed to a point where discrimination is no longer a paramount concern?
That is the question underpinning the Supreme Court’s recent decision to refuse to allow a group of female employees to bring a class action lawsuit against Wal-Mart for discrimination. Class action law has been one of the strongest weapons in the hands of citizens to fight discrimination for half a century. The modern form of the class action was created in 1966, as a result of a major reform of the Federal Rules of Civil Procedure. Since then, the use of class actions has been a central tenant of the NAACP’s strategy to fight discrimination in all its forms. In many ways, around the start of the 70s, the discrimination war in the United States moved from the extremely public venues of the 60s to the less public venue of the courts.
Because of the 1966 changes, courts could more easily issue injunctions against discrimination and order affirmative action programs or even punitive damages if necessary. As a result, police departments, fire departments, private corporations and unions with discriminatory policies and practices were required to reform one by one.
The purpose of these class actions was not to make anybody rich. The purpose was to allow groups of individuals with little money or influence to band together to fight an injustice. Success generally came in the form of an order against future discrimination or the implementation of an affirmative action program.
There was a portion of the class action rule that gave claimants the ability to seek money damages. But in 1966, the rule makers anticipated that this could become a problem and placed major restrictions on class actions for money damages.
As I described in my previous post, the Wal-Mart decision effectively extended some of these restrictions to all class actions. For example, the plaintiffs in Wal-Mart produced statistical evidence that male employees were significantly more likely to be promoted than female employees with identical experience. The plaintiffs also produced 120 testimonials from individual employees describing particular acts of discrimination. The Supreme Court held that this evidence was insufficient to demonstrate a pattern of discrimination; many more testimonials would be required. The effect of that decision is to create a situation in which the larger a corporation is, the more difficult it becomes to sue that corporation for discrimination.
That is just one example. The Wal-Mart case makes it more difficult to bring discrimination-based class actions in many other ways as well. The result will be to diminish the ability of groups like the ACLU and the NAACP to use the class action as a tool for fighting discrimination.
Perhaps America has reached a point where the interests of large corporations should outweigh the concern that discrimination still exists. But I doubt it.