Abstract

http://ssrn.com/abstract=1995238
 


 



Robbing a Barren Vault: The Implications of Dukes v. Wal-Mart for Cases Challenging Subjective Employment Practices


Elizabeth Chika Tippett


University of Oregon School of Law

April 4, 2014

Hofstra Labor and Emploment Law Journal, Forthcoming
7th Annual Conference on Empirical Legal Studies Paper

Abstract:     
This article examines federal opinions from 2005-2011 challenging subjective employment practices under a 'disparate impact' or 'pattern or practice' theory to assess the likely impact of Dukes v. Wal-Mart on such cases.

Although the Wal-Mart ruling favors employers, results suggest that the ruling’s effect on employer selection practices will be muted by the low prevalence of such claims. An average employer’s litigation risk in connection with such claims is so vanishingly small that I surmise they rarely examine or alter their subjective selection practices in response. However, the risk of a lawsuit challenging subjective employment practices was not homogenous across all employers. Fortune 100 companies faced a substantial risk – about 15% – of being subject to such a suit between 2005 and 2011 These mega-class actions are unlikely to withstand the more stringent certification standard articulated in Wal-Mart.

I discuss the potential policy implications of a litigation landscape in which the very largest disparate impact and pattern or practice class actions are no longer viable. I observe that the public value of these mega-class actions is difficult to assess because the plaintiffs were never forced to prove the availability of a less discriminatory selection procedure. I then offer potential regulatory options to address the overall dearth of cases challenging subjective employment practices and the problematic employer incentives generated by Wal-Mart.

Number of Pages in PDF File: 51

Keywords: Wal-Mart, Dukes, Title VII, disparate impact, pattern or practice, subjective, empirical, content analysis, employer selection practices, uniform guidelines, watson, falcon, class actions, certification, commonality

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Date posted: January 30, 2012 ; Last revised: April 14, 2014

Suggested Citation

Tippett, Elizabeth Chika, Robbing a Barren Vault: The Implications of Dukes v. Wal-Mart for Cases Challenging Subjective Employment Practices (April 4, 2014). Hofstra Labor and Emploment Law Journal, Forthcoming; 7th Annual Conference on Empirical Legal Studies Paper. Available at SSRN: http://ssrn.com/abstract=1995238 or http://dx.doi.org/10.2139/ssrn.1995238

Contact Information

Elizabeth Chika Tippett (Contact Author)
University of Oregon School of Law ( email )
1515 Agate Street
Eugene, OR 97403
United States
541-346-8938 (Phone)
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