As the plaintiffs’ class action bar continues to search for “re-booting theories” to work around Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011) (read more here, here, here, here, and here), employers now face a challenge from a new direction.  Yesterday, Congressional leaders proposed legislation designed to combat the restrictions on class action lawsuits established in Dukes and further open the door for employment class claims. 

Exactly one year to the day after the Supreme Court issued its decision in Dukes (described here), Senator Al Franken, D-Minn., and Representative Rosa DeLauro, D-Conn., introduced proposed legislation – entitled the Equal Employment Opportunity Restoration Act of 2012 – to “restore the effective use of group actions for claims arising under Title VII.” 

Key Attributes Of The Proposed Legislation

The proposed Act would eviscerate the impact of Dukes and create a new, liberal standard for pursuit of group actions under certain statutes, including Title VII, the ADA, the Rehabilitation Act of 1973, and the Genetic Information Nondiscrimination Act (GINA).   

Under the proposed scheme, a representative could sue on behalf of a group by showing “by a reasonable inference” that he or she meets the numerosity, typicality, and adequacy elements reflected in Rule 23, and that the members of the group “have been subject to an employment practice that has adversely affected or is adversely affecting a significant portion of the group’s members.” The proposed Act also would eliminate a group representative’s need to meet the commonality requirement of Rule 23(a)(2) and eliminate the need to make any showing under Rule 23(b). The Act would otherwise leave the procedures of Rule 23(c) through (h) in place, including the availability of interlocutory review under Rule 23(f).  

The proposed Act makes clear that exercise of individual discretion would not defeat a group claim: It states that: “[t]he fact that individual supervisors, managers or other employees with authority to make personnel decisions may exercise discretion in different ways in applying a subjective employment practice . . . shall not preclude a representative party from filing a corresponding group action under this section.” The proposed Act also liberalizes the assessment of damages by shifting the burden to employers to demonstrate that, even in the absence of discrimination, a member of the group would not have received a particular employment opportunity or benefit, and specifically authorizing the use “such procedures as the interests of justice warrant” to apportion relief. 

Implications Of The Proposed Legislation

The proposed Equal Employment Opportunity Restoration Act of 2012 is misnamed. It is difficult to imagine a scheme more at odds with the basic precepts of federal class action law or the Supreme Court’s decision in Dukes. Further, by eliminating the need to make any commonality or Rule 23(b) showing, the Act’s authors arguably have gone well beyond simply reversing the impact of Dukes. Instead, they seek to create new procedural rules far more relaxed than pre-Dukes interpretations of Rule 23.

Whereas the proposed legislation drew resounding support from a number of civil rights groups, it remains to be seen whether the bill will gain any traction in either the House or the Senate.