Dukes v. Wal-Mart: Road Map for Critical Self-Analysis

This White Paper focuses on how the Wal-Mart decision can be used as a “road map” for employer risk assessments and corrective measures. The decision in the well-publicized Wal-Mart case, issued this June, certified the largest private civil rights class action in U.S. history. (Dukes v. Wal-Mart Stores, Inc., No. C01- 02252, __ F.R.D. __, 2004 WL 1385490 (N.D. Cal. June 21, 2004).) While many employers may be concerned about the impact of the ruling, it is important to note that the Court’s decision turned largely on a cluster of facts distinctive to Wal-Mart and founded on Ninth Circuit case law. The impact of this decision on subsequent litigation will depend largely on an organization’s similarities to Wal-Mart’s corporate structure, its employment policies and practices, and the applicable Circuit precedent.

Employers that have practices similar to Wal-Mart’s can use the decision to make their own litigation risk assessment. But even for employers that believe their practices differ from Wal-Mart’s, the decision is instructive because it highlights the scheme that virtually all plaintiffs’ lawyers seek to apply in class actions to try to show a common link among a large number of diverse potential class members.

For the full story, please view the PDF.