Thumbnail image for SupremeCourt.jpgBy Gerald L. Maatman, Jr. and Laura J. Maechtlen
As we previously reported in this blog, the plaintiffs’ class action bar are resourceful and creative, and their threatened tactic of imposing “death by a thousand cuts” continues following the U.S. Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). Plaintiffs’ counsel in Dukes announced this week that nearly 2,000 current and former employees of Wal-Mart filed charges of pay and promotion discrimination with the U.S. Equal Employment Opportunity Commission since the SCOTUS dismantled the class certification order in that litigation. 

The claimants who filed these charges were all originally members of the class of 1.5 million women that was decertified, and it appears that plaintiffs’ counsel has made good on their early-2012 promise that class members would file administrative charges with the EEOC to protect their right to sue over what they allege were discriminatory practices in pay and promotion.

By court order, January 27, 2012 was the deadline for women in Alabama, Arkansas, Georgia, Mississippi, and North Carolina to pursue administrative charges with the EEOC. Women in all other states were given until May 25, 2012 to file their EEOC claims. Now that the filing deadlines have ended, and according to a press release issued this week, 1,975 EEOC charges were filed against Wal-Mart, covering every Wal-Mart retail region in the United States. Florida leads the list of current EEOC filings with 284 claims, followed by Alabama with 142 and Georgia with 119. Except for Montana and Vermont, every state in the country saw at least one EEOC charge filed against Wal-Mart. Women with claims of recent pay and promotion discrimination also may continue to file charges against Wal-Mart if the alleged discrimination occurred within 300 days of the filing, or 180 days in Alabama, Arkansas, Georgia, Mississippi, or North Carolina.  

These numerous administrative charges join multiple regional class action lawsuits that have been amended in California and filed Texas federal courts in October 2011 on behalf of female workers at Wal-Mart stores in those regions, as well as an expanded class action lawsuit filed in Texas federal court in January 2012. Counsel for plaintiffs assert that numerous other class actions will be filed in other states throughout the year, so we expect to see additional lawsuits arise in other jurisdictions across the country, no doubt based on the thousands of administrative filings announced this week. 

Implications For Employers

“Death by a thousand cuts” – or a strategy to aggregate individual claims – appears to be a new gambit in the playbook of the plaintiffs’ class action bar.

We will continue tracking future developments in this arena, including whether the EEOC will attempt to further its “strategic plan” to pursue large-scale litigation based on one or more of the charges filed by the putative class members in Dukes. As we previously noted, the EEOC need not satisfy Rule 23 requirements when pursuing large-scale pattern or practice claims because it does not act as class representative, but rather sues in its own name to redress a discriminatory practice. Likewise, so long as one employee has filed an administrative charge of discrimination, the EEOC may pursue relief on behalf of other similarly-situated workers who did not file charges of their own. Whether the plaintiffs’ bar can utilize EEOC pattern or practice lawsuits as a way to “work around” the SCOTUS ruling on Rule 23, or as elaborate leverage to facilitate settlement on behalf of classes of employees, it is clear that the plaintiffs’ bar is not walking away from Wal-Mart Stores, Inc. v. Dukes quietly.