Employment Discrimination Class Actions After Wal-Mart V. Dukes

The Supreme Court’s decision in Wal-Mart v. Dukes was widely seen as a game-changer with the likely effect of making employment discrimination class certifications more difficult. This Symposium contribution explores the effects of that decision through recent court interpretations. We find that, although class filings appear to be down, the decision did not alter the certification landscape nearly as much as had been feared. Courts have readily distinguished the Wal-Mart decision by focusing on its nationwide scope and it appears that certification decisions have not materially changed in light of the decision. One notable change is that defense counsel have become more aggressive in their motions to dismiss even before a certification hearing is held but those efforts have almost uniformly failed