On June 20, 2012, the one-year anniversary of the Supreme Court’s decision in Wal-Mart v. Dukes, Senators Al Franken (D-Minn.) and Richard Blumenthal (D-Conn.) and Congresswoman Rosa DeLauro (D-Conn.) introduced legislation intended to reverse the impact of Dukes on class certification decisions in employment discrimination cases brought in federal court. According to an information sheet from Senator Franken’s senatorial website, the Equal Employment Opportunity Restoration Act would “restore workers’ ability to challenge discriminatory employment practices on a class-wide basis” by amending section 28 of the U.S. Code in four significant ways:

  1. Section 4201(a) would create a new procedure called “group actions” in employment discrimination cases, which could be maintained merely by satisfying what Franken calls the “pre-Dukes” requirements of class certification, i.e., “the merits of the case need not be proven;”
  2. Section 4201(b) would allow for “group actions” to be brought to challenge objective, subjective or mixed employment practices and would allow written anti-discrimination policies to be considered as a defense only if the employer proves the policy has actually been implemented in practice;
  3. Section 4201(c) would subject “group actions” to the existing Rule 23 procedural requirements, like opt-out and notice, and also would extend application of the Class Action Fairness Act; and
  4. Section 4201(d) would provide that courts are permitted to employ statistical analyses or other procedures they “deem necessary to provide justice to prevailing plaintiffs.”

The proposed legislation is limited exclusively to employment discrimination actions, despite the implications of Wal-Mart v. Dukes for all class actions. While the fact sheet suggests inaccurately that Dukes required the merits of the case to be proven at the certification stage, the text of the legislation shows that the act would alter the "convincing proof" standard for supporting certification of a class by (1) altering the standard itself to one of a demonstration only of a "reasonable inference," and (2) altogether eliminating the Rule 23 requirement of commonality, although the act also instructs courts to apply Rule 23 to the extent consistent with the act. Specifically, Section 4201(a) provides that "a group may sue on behalf of all members of the group if the representative party shows, by a reasonable inference, that--

`(1) the members of the group are so numerous that their joinder is impracticable;

`(2) the claims of the representative party are typical of the claims of the group the representative party seeks to represent and the representative party and the representative party's counsel will fairly and adequately protect the interests of the group; and

`(3) the members of the group are, or have been, subject to an employment practice that has adversely affected or is adversely affecting a significant portion of the group's members." In addition, Section 4201(d) not only would affirm the permissibility of the use of statistics and "other procedures" at the remedy stage of litigation, but it also provides that "the court may deny a remedy available under the covered employment statute to a member of the group only if the employer demonstrates, by a preponderance of the evidence, that the member of the group would not have received the corresponding employment opportunity or benefit even in the absence of a violation of the covered employment statute." It is unclear whether the provisions of Section (d) are intended to or may properly displace any Rules of Evidence.

The bill is co-sponsored by 22 senators and 36 members of the House of Representatives.