June 22, 2012
One year after the U.S. Supreme Court held that a broad-based pay discrimination class action case against a company had to show a “company-wide discriminatory pay and promotion policy,” liberal members of Congress have introduced legislation to create a new category of group-based litigation. Rather than overturn the Court’s Wal-Mart v. Dukes decision, the Equal Employment Opportunity Restoration Act (S. 3317; H.R. 5978) would create a “new judicial process” that would allow “group actions” under Title VII, ADA, Rehabilitation Act, and GINA as an additional alternative to class actions, where the plaintiffs are unable to meet the higher standard for class certification. Among other criteria, “group actions” would be available where the claims of one or more plaintiffs are “typical of the claims of the group” they seek to represent and the members of the group have been subjected to an employment practice that has adversely affected or is adversely affecting a significant portion of the group’s members.” Senate sponsor Al Franken (D-MN) said: “The [Dukes] decision had a disastrous effect on workers' rights and fewer cases are making it to the courtroom. A single worker is often deterred [from filing discrimination claims] … It's too costly.” If the November elections result in a Democratic Congress, the legislation would very likely be one of its highest priorities.