This week at the Court – In Plain English

By Lisa Tucker
on Dec 9, 2010 at 4:29 pm

However cold it might have been this week in Washington, D.C. (and if you’re not on the East Coast, let me tell you – it is cold), action at the Court was hot.  Yes, now that we are a full two months into the Term, it feels like we never left – just in time for the Christmas recess. 

 The week started off big when the Court granted cert. in Wal-Mart v. Dukes, the class action employment discrimination case against the retail giant that Court watchers have been eyeing for months.    The Court won’t be considering whether Wal-Mart actually discriminated against its female employees; instead, it will hear arguments about the class action mechanism itself.  As I’ve explained in previous Plain English posts, a class action is a type of lawsuit where many plaintiffs with similar claims join together and bring one suit, rather than many individual ones.  A few “named plaintiffs” whose claims and experiences are typical of the rest of the class assert the legal rights of all the other class members.  Courts often see class actions as efficient – after all, why hear pretty much the same case a thousand times if all one thousand plaintiffs agree to accept a single outcome?  Plaintiffs see class actions as advantageous when their individual claims are too small to warrant the time and expense of a trial and when they can afford to hire a lawyer (and get a lawyer interested in their case) en masse but not individually.  Lawyers often see class actions as lucrative:  if they get a whole bunch of plaintiffs together and take a percentage of their damage awards for a fee, then they can work hard but get paid well for it.  Of course, there are all kinds of criticisms of class actions, too, among them the concern that the lawyers end up making much more money than the plaintiffs do, but federal procedure rules allow class actions so that plaintiffs can receive something they want and need:  an opportunity to bring their cases in court.

In the Wal-Mart case, though, there is some skepticism about both the size of the proposed class and its make-up.  For class actions to work as they should, all of the plaintiffs in the class must have very similar claims because they have suffered very similar harms – so that any damages awarded to the class will truly compensate them for the harm that they have suffered and so that the defendants can prepare one defense to the class claims.  In the Wal-Mart case, the company is arguing that the class is too large – it includes hundreds of thousands of female store employees from across the country – and that the class members’ claims are not similar enough to justify certifying them as a class.  After all, they worked at different stores, under different bosses, in different positions.  How can they all have suffered the same harm?

Of course, this case is not only about Wal-Mart, and that’s what makes it (and most other Supreme Court cases) so interesting.  Whatever the Court decides about class actions will trickle down and affect the formation of future class actions, as well.  While many commentators have noted that the current Court is quite friendly to big business, others, like Dahlia Lithwick, have noted that the three women on the Court may want the class to be certified so as to reach the gender discrimination claims at the heart of the case.

Wal-Mart is a great example of the kind of “David and Goliath” case that often makes its way to the Court.  Indeed, the Court’s motto, “Equal Justice Under Law,” means in part that everyone – store clerks and Fortune 500 companies alike – has access to justice.  The Court heard oral arguments this week in another “David and Goliath” kind of case, Thompson v. North American Stainless, in which an engineer at a stainless steel manufacturer was fired after his then-fiancée (now wife) filed a gender-discrimination complaint with the Equal Employment Opportunity Commission.  Eric Thompson argued that, because the company could not legally fire his fiancée in retaliation for her complaint, it instead fired him.  At question in the case is whether Title VII – a federal anti-discrimination law – protects close family members and friends of a complaining employee, or instead only the employee herself from retaliatory employer action.  The Obama Administration sides with Thompson here, arguing that employers would have an easy retaliatory loophole if the law were to allow them to fire spouses and others with close relationships to the person filing a complaint.  But, in oral argument, some Justices brought up the proverbial “slippery slope,” asking where protection against retaliation begins and ends.  As Justice Alito put it, “Does it include simply a good friend?  Does it include somebody who just has lunch in the cafeteria every day with the person who engaged in the protected conduct? Somebody who once dated the person who engaged in the protected conduct?”   Although some Justices called for a hard and fast rule governing who would be protected (presumably to put employers on notice), Thompson and the United States argued that common sense should dictate.  A tough question – one the Court will answer sometime next year.

Last but not least, the interests of some real underdogs – undocumented immigrants – were hotly debated at the Court this week in Chamber of Commerce v. Whiting.  At issue was an Arizona law (no, not that Arizona law) that penalized businesses hiring such workers.  The problem?  Well, immigration matters are generally the domain of the federal government, and the states are not allowed to pass laws interfering with that federal role.  But under a tiny phrase in a federal law allowing the state to pass laws in very limited circumstances (mostly licensing situations), Arizona may have found its own loophole – by revoking the business licenses of companies that employ undocumented immigrants rather than fining them.  The Justices appeared divided on the question; with Justice Elena Kagan recused from the case, it is possible that the Justices could tie four to four, which would result in the decision below being affirmed.

The case is important because other similar laws, including the recent Arizona law allowing police to stop those whom they reasonably suspect to be in this country illegally, are on their way to the Court.  And as we’ve seen with all of the cases described in this post, a single Supreme Court case is most important when it serves as precedent for cases down the pike. 

Happy holidays to all! I’ll be back after the first of the year to discuss all things Supreme Court – in Plain English.