Olson and Elwood on Wal-Mart v. Dukes

Overlawyered‘s Walter Olson comments on the implications of Wal-Mart v. Dukes in the Philadelphia Inquirer. Here’s his conclusion:

This week’s decision will make it harder, though not impossible, to apply class actions to employment-discrimination cases in which cash damages are the main point. (As the court noted, though, class treatment is still more liberally available for injunctive relief, such as in a suit asking that a company be ordered to change a discriminatory personnel policy.)

That does not mean, as one veteran Supreme Court reporter wrote this week, that future aggrieved employees will all have to “file their own lawsuits,” or that large companies can operate with impunity. The court did not rule out lawsuits on behalf of groups of employees affected by the actions of some identifiable corporate policy, for example, or by particular managers or supervisors or offices. And even suits by individual employees against big companies regularly demand, and sometimes get, million-dollar damages.

The message of this ruling is simple: Employees have to prove that they have been legally wronged, not just cash in because somebody else was.

In addition, our own John Elwood contributed a short commentary on Wal-Mart v. Dukes to the NYT‘s Room for Debate feature on the case. In it he explains why the case’s outcome should not have been a surprise.