July 22, 2019

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The Next Wave? Serial Discrimination Filings from Prior Class Claims

Notwithstanding the employers’ victory at the U.S. Supreme Court in Epic Systems Corp. v. Lewis, which made it clear that arbitration and class action waiver regimes do not violate the National Labor Relations Act, employers are now facing another obstacle: serial arbitration filings. These filings, in an attempt by some plaintiffs’ attorneys to overwhelm the system, are intended to pressure employers into waiving their arbitration agreement, as defending dozens or hundreds of individual arbitrations can be extremely expensive.  Indeed, some prominent plaintiffs’ firms are attempting to “staff up” their ranks in order to handle mass arbitrations.  We discuss this issue in greater detail in our Spring Class Action Trends Report.

While many employers are grappling with this phenomenon, the plaintiffs’ bar has recently extended this strategy beyond wage and hour cases into a new space: discrimination claims. In 2011, the U.S. Supreme Court rejected a nationwide suit alleging discrimination filed against Wal-Mart. Wal-Mart v. Dukes, 564 U.S. 338 (2011).  The named plaintiffs in Dukes, who sought to represent a putative class of approximately 1.5 million female employees, alleged the company discriminated against them on the basis of their sex by denying them equal pay or promotions in violation of Title VII. The U.S. District Court for the Northern District of California certified a national class of female employees challenging the pay and management promotion policies as discriminatory against women.  On June 20, 2011, the United States Supreme Court reversed the class certification order. The Court, in a 5-4 decision authored by the late Justice Antonin Scalia held, among other things, that certification of the class was not consistent with Rule 23.  Subsequently, Wal-Mart was sued in numerous class action lawsuits, none of which had class claims successfully advance other than in the Sixth Circuit (which, ultimately, was unsuccessful after the Supreme Court’s 2018 ruling in China Agritech v. Resh).¹

Now, in an attempt to make employers sorry for winning the Dukes case, plaintiffs’ attorneys have turned to filing serial individual discrimination suits against Wal-Mart.  In the past four months, Wal-Mart has been sued at least 18 times in individual pay bias lawsuits, alleging the same claims and brought by the same group of plaintiffs’ attorneys.  To date, the complaints alleging gender discrimination have been brought in eight states: Pennsylvania, Kentucky, Ohio, California, Virginia, Tennessee, West Virginia, and Florida. The complaints expressly state that the lawsuits “spring” from Dukes v. Wal-Mart, the national class action filed more than ten years ago.  According to Christine Webber, a civil rights lawyer and partner with Cohen Milstein Sellers & Toll in Washington, D.C., more are on the way.² Cohen Milstein Sellers & Toll previously worked on the Dukes class action and is coordinating the multiple state suits with local law firms. Corporate Counsel recently reported that preparations are under way for suits in five more states this year: Alabama, Iowa, Illinois, Mississippi and Texas.³

We will continue to monitor and report on this trend of serial filings within the discrimination arena (and other trends related to class actions). Please contact a Jackson Lewis attorney if you have any questions relating to this latest trend or any other employment law issues.

 

[1] Robert Iafolla and Paige Smith, Walmart Faces New Legal Battle From Old Pay Bias Claims, Bloomberg Law (May 24, 2019) available.

[2] Id.

[3] Sue Reisinger, Walmart Faces New Round of Gender Discrimination Suits Based on 2001 Dukes Complaint, Corporate Counsel (May 14, 2019).

Jackson Lewis P.C. © 2019

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About this Author

Principal

Stephanie L. Adler-Paindiris is a Principal and Office Litigation Manager for the Orlando, Florida, office of Jackson Lewis P.C. She is Co-Leader of the firm's Class Actions and Complex Litigation practice group. Her practice focuses exclusively on the representation of employers at the trial and appellate level in state and federal courts, as well as proceedings before administrative judges and agencies.

Ms. Adler-Paindiris has conducted over a dozen trials before juries and judges in state and federal courts. In addition, Ms. Adler has participated in...

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David Golder, Jackson Lewis, wage hour dispute attorney, Fair Labor Standard Act Lawyer
Principal

David R. Golder is a Principal in the Hartford, Connecticut, office of Jackson Lewis P.C. Mr. Golder has extensive experience handling class and complex litigation, including nationwide, high-stakes wage and hour disputes. Mr. Golder defends employers in class-based, multi-plaintiff, and multi-district wage and hour class and collective actions involving claims for employee misclassification, improper payment of wages, off-the-clock work, and meal and rest break violations. Mr. Golder also provides preventive advice and counsel to employers wishing to limit their exposure to investigation and litigation under the federal Fair Labor Standards Act and the state laws that require employers to pay overtime and minimum wages to their employees.

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Associate

Stephanie L. Goutos is an Associate in the Albany, New York, office of Jackson Lewis P.C. Her practice is focused on general employment litigation and class action and complex litigation.

Prior to joining Jackson Lewis, Ms. Goutos was the Senior Attorney to the New York State Deputy Commissioner of Higher Education at the Department of Education. Ms. Goutos led negotiations with New York State teacher unions, administrative unions, and district superintendents, as well as provided counsel on a wide variety of education law issues. She has...

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Eric R. Magnus, Jackson Lewis, Wage and Hour Class Defense Lawyer, Employment Matters Attorney
Shareholder

Eric R. Magnus is a Shareholder in the Atlanta, Georgia, office of Jackson Lewis P.C. His practice is focused primarily on defending federal and state wage and hour class and collective actions in jurisdictions across the United States.

Mr. Magnus’ collective and class action practice focus primarily on “donning and doffing,” “off-the-clock” and misclassification wage and hour cases. Mr. Magnus has obtained summary judgment at the district and circuit court levels in Fair Labor Standards Act and state law cases across the...

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