Excellent ruling for those who care about fighting gender discrimination in the workplace

Excellent ruling for those who care about fighting gender discrimination in the workplace

By Amy Radon, Staff Attorney

Some corporations said employment class actions were going to be nearly impossible to bring after the big Wal-Mart case fell through. Not so. Not in the least.

The U.S. District Court for the Southern District of New York issued an excellent ruling last week in a gender discrimination case on behalf of female employees at KPMG, the U.S. branch of an international accounting firm.

The plaintiffs in this case are five women who brought a class action on behalf of themselves and other female employees at KPMG for pay discrimination, promotion discrimination, pregnancy discrimination and retaliation under federal and state law. KPMG moved to dismiss the case on numerous grounds, arguing (among other things) that the U.S. Supreme Court’s 2011 decision in Wal-Mart v. Dukes (lead plaintiff Betty Dukes pictured) foreclosed the possibility that the plaintiffs here would be able to certify a class, and that Dukes barred the plaintiffs from seeking injunctive or declaratory relief.

The New York court issued a sweeping rejection to virtually every theory KPMG asserted, and also clarified the limited nature of the Dukes ruling. First, the Court made clear that Dukes “did not close the door altogether on the possibility of certifying a class based on a policy of giving discretion to lower-level supervisors.” Rather, as even Dukes itself recognized, “giving discretion to lower-level supervisors can be the basis of” a federal gender discrimination claim “since an employer’s undisciplined system of subjective decision making can have precisely the same effects as a system pervaded by impermissible intentional discrimination.”

Second, the court confirmed what many courts across the nation have held: that a motion to dismiss based on Dukes is premature if brought prior to the class certification stage. Instead, the court explained, the relevant question when determining whether to grant a defendant’s motion to dismiss is whether “it is plausible” that plaintiffs will have enough evidence that there exists a specific employment practice that ties all of the class members’ claims together at the class certification stage to certify the class.

Finally, the court rejected KPMG’s argument that Dukes adopted a “blanket rule” that would deny former employees standing to seek injunctive or programmatic relief.

Reuters’ legal blog On the Case called the judge’s ruling a “very thoughtful 38-page decision.”

This decision is a great win for anyone who cares about holding employers accountable for gender discrimination. It demonstrates that courts are unwilling to read the Dukes decision as broadly as many defendants urge, and confirms that plaintiffs should be given the opportunity to develop their gender discrimination case to demonstrate that a class action is warranted.

[Photo: Alex Wong/Getty Images]

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