Employment Law Chronicle for Virginia & the District of Columbia

In a decision "not recommended for full text publication," the Sixth Circuit struck down provisions in an employment application that required prospective employees to waive their rights to a judicial forum for employment-related claims and to agree to shorten the statute of limitations for all employment disputes to six months. According to the Court, the employees had not knowingly, intelligently, and voluntarily waived their right to a judicial forum because when the employees signed the waivers "they had no idea" of what the grievance process they were agreeing to entailed.

Continue reading " Employees Not Required to Arbitrate Employment Claims (Alonso v. Huron Valley Ambulance Inc., 6th Cir.) " »

Today, the Ninth Circuit certified an enormous class action against Wal-Mart Stores based on alleged gender discrimination in violation of Title VII "encompassing all women employed by Wal-Mart at any time after December 26, 1998," subject to some modifications. As set forth in the Court's decision, this employee class action targets the following:

Plaintiffs allege that women employed in Wal-Mart stores: (1) are paid less than men in comparable positions, despite having higher performance ratings and greater seniority; and (2) receive fewer—and wait longer for—promotions to in-store management positions than men. Plaintiffs contend that Wal-Mart’s strong, centralized structure fosters or facilitates gender stereotyping and discrimination, that the policies and practices underlying this discriminatory treatment are consistent throughout Wal-Mart stores, and that this discrimination is common to all women who work or have worked in Wal-Mart stores.

The complete, 137-page opinion is here: Dukes v. Wal-Mart Stores.

Characterizing this employment discrimination case as reflecting "certain grit and perseverance," a panel of the 4th Circuit reversed the district court's grant of summary judgment to the employer, thereby allowing the employee's case of sex-based termination to proceed.

Central to the dispute was employer Old Dominion's claim that it fired truck driver Deborah Merritt because Ms. Merritt had failed a physical ability test ("PAT"), which was administered because she had suffered an ankle injury. According to Old Dominion, the PAT demonstrated that Ms. Merritt was unable to perform the physical requirements of her job. As reflected in this quote from the opinion, the PAT was problematic:

According to Merritt, the tasks with which she had problems were unrelated to her ankle injury. For example, on one portion of the PAT, Merritt was unable to place a box of weights on an overhead shelf simply because the shelf was too high for her (at barely over five feet, one inch tall) to reach. On another part of the PAT, Merritt had difficulty walking backward pulling a cable due to people bumping into her in a crowded hallway.

Problems with the test as a measurement of Ms. Merritt's physical ability to perform the job, combined with other evidence suggesting sex-based animus, led a panel of the 4th Circuit to conclude that "the record as a whole supports Merritt’s claim that a jury could find that discrimination on the basis of gender was afoot." Early in the opinion, the panel noted that of the 3,100 drivers employed by Old Dominion in the same position as Ms. Merritt, only six were women.

Putting a fine point on the importance of this decision, in a concurring opinion, Judge Davis wrote:

I particularly appreciate the majority opinion’s reminder that, in intentional discrimination cases, we should not examine the trees so minutely that we lose sight of the forest. The ultimate question in this case, as in all intentional discrimination cases, is not whether the McDonnell Douglas test is satisfied. It is instead, as the majority opinion teaches, whether the plaintiff has generated a genuine dispute of material fact that she is the victim of intentional discrimination, notwithstanding facially plausible reasons offered by the employer for its adverse employment action. The proof scheme is but a useful tool to help identify and resolve that real issue.

Virginia employment lawyers should take note of this decision and other recent decisions in which the 4th Circuit has reversed summary judgment and reinstated plaintiffs' claims.

Appeal from the United States District Court for the Western District of Virginia, Norman K. Moon, District Judge.
Decided: April 9, 2010, Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges.
Reversed

Click on the published opinion.