¶ … Actions Lawsuits in Employment Sex-Discrimination Lawsuits: When are they Appropriate?
The class action lawsuit is a somewhat controversial tool, particularly in the case of employment discrimination. In many ways, it is a hallmark of judicial efficiency. After all, if a number of plaintiffs have the same claim against a defendant, it is inefficient to try the same case a number of times. Moreover, later plaintiffs may be unable to recover if earlier plaintiffs exhaust a defendant's financial resources. Therefore, if a company has an employment policy that is facially discriminatory, or has a readily-provable and consistent disparate impact, class-action litigation can be appropriate. However, in many ways the class actions lawsuit is not well-suited for employment discrimination lawsuits. Employment discrimination, particularly gender-based employment discrimination, is frequently subtle and a finding of discrimination is not going to be based on company policies, but on the treatment of a particular individual. Moreover, it seems that unscrupulous employers find ways to evade anti-discrimination laws, which have also been eroded through some subsequent legislation. "There is a reason that the field of labor and employment law -- both as an academic subject and as an arena of social life -- has declined. That is that the labor and employment laws do not address the concerns or vulnerabilities of the majority of the workforce today" (Stone, 2008).
While the use of this class action mechanism is meant to remedy that inequality, it seems to do so at the expense of the basic proposition of judicial fairness, not only for defendants, but for many of the class members. For example, if a company has discriminatory policies but the plaintiff did not experience gender discrimination, then there is no basis for recovery. These are all important factors to consider when looking at the efficacy of the class action lawsuit in employment discrimination lawsuits, and they all played a role in the Supreme Court's recent decision not to allow certification of the class of all female Wal-Mart employees from a particular time period in an employment discrimination lawsuit against the company.
In June, 2011, the Supreme Court reversed...
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