Avoiding Dukes

By Andy Volin

Female employees at national employers claim systemic pay discrimination in a variety of settings. The most famous example is the Supreme Court’s 2011 decision in Wal-Mart Stores, Inc. v. Dukes. There, the Supreme Court ruled that a nationwide class action for female workers was improper because individual stores had discretion to set wages and so, there was no common national policy upon which to base a nationwide class action.

Female store managers at Family Dollar Stores persuaded the Fourth Circuit that their case is different from Dukes. Rather than focusing on store-level compensation decisions, they claim decisions about their salaries are made at the national level. E.g. national policies set minimum and maximum salary ranges and different salary structures for promotions as opposed to external hires. High level employees, e.g. Vice Presidents and Regional Managers, exercise discretion to decide salaries within the national requirements. The female store managers allege this high level discretion is exercised in a common way and with common instructions that favor men at their expense.

Although the female store managers won this battle, the court’s decision was a narrow procedural ruling, and they may not win the war. The Fourth Circuit allowed the plaintiffs to amend the complaint, but the ruling does not mean that the case will ultimately be granted nationwide class status. Scott v. Family Dollar Stores, Inc., No. 12-1610 (4th Cir. Oct. 16, 2013).

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