Employment Discrimination I

Discussion Topics and Additional Reading for Class 5

Reading (in addition to the readings listed in the syllabus):

                Featherstone, pages 68-84.

Discussion Topics:

In our two classes on employment discrimination, and a third entitled “Wal-Mart as Litigant,” we will be taking a close look at some of the issues raised by Dukes v. Wal-Mart, the largest employment discrimination lawsuit ever filed.  To understand these issues, you need to become acquainted with the three basic approaches to proving liability under Title VII of the 1964 Civil Rights Act:  individual disparate treatment (described in Burdine); systemic disparate treatment, also known as “pattern or practice” (described in Teamsters); and disparate impact  (described in Watson).  It is also important to understand the remedies that are available when unlawful discrimination has been proved (see both the statutory provisions and the EEOC v. Wal-Mart case).

We’ll take up these issues through an exercise in which we’ll analyze the facts alleged by Stephanie Odle, whose individual claims of discrimination served as the starting point for the Dukes litigation.   Her story is described on pages 13-23 of the Featherstone book, which you should read carefully.  Add in these additional facts, omitted by Featherstone but mentioned in Stephanie Odle’s affidavit:¹

·         Just before the series of transfers that Featherstone describes at the top of page 17, Odle was disciplined.  She was accused of making incorrect audit entries “understating shrinkage” while she served as assistant manager at the Riverside, California Sam’s Club.  Odle says that these entries had been approved by the regional loss prevention manager (a male), and that other male managers had made similar entries.  Despite this, she was given a written disciplinary warning.  When she used the Open Door policy to complain about her treatment, a regional vice president refused to remove the discipline from her personnel file.

·         On page 18, Featherstone says that after a man expressed interest in the Tulsa co-manager position (which Odle previously had been told she would get), Odle  “was disciplined on a cash register technicality” and denied the promotion.  Here are more details on what Odle says happened.  She gave a refund to a regular business customer at the Sherman, Texas store without asking him for proof of the purchase.  She had seen male store managers do the same thing.  Afterwards, she realized that she had entered the wrong code for the refund, and reported her error to the accounting department; she also mentioned that she didn’t have the refund slip.  Her male store manager suspended her, gave her a written disciplinary warning, and required her to transfer to another store.

Be prepared to discuss:

·         If Odle brought an individual claim of discrimination under Title VII, what actions taken by Wal-Mart could she challenge?  (Assume no statute of limitations problems.)

·         Can Odle establish a prima facie case?  How could Wal-Mart rebut it?  What would Odle then need to show in order to prevail?

·         As the plaintiff’s attorney, what facts could you point to, and what further evidence would you look for, through informal investigation or formal discovery, to help develop a winning case?  If you were Wal-Mart’s attorney, what arguments might you make, and how would you try to bolster them?

·         What remedies are available to Odle if she wins?  If you were the plaintiff’s attorney, what would you try to establish in order to maximize her recovery?  If you were representing Wal-Mart, what would you try to do to limit her remedies?

Next, we’ll turn to the systemic disparate treatment (“pattern or practice”) model, the approach taken by the plaintiffs in the Dukes case.  Some questions to consider:

·         From the perspective of an individual plaintiff like Stephanie Odle, what are the advantages and disadvantages of pursuing a “pattern or practice” class action, rather than bringing an individual lawsuit?

·         How do the proof structure and remedies differ from an individual disparate treatment claim?

·         How are the plaintiffs’ attorneys in Dukes attempting to prove a company-wide pattern of discrimination in pay and promotions?  What do you make of the evidence relating to Wal-Mart’s reliance on subjective decision-making, its uniform corporate culture, and gender stereotyping, which is discussed in Judge Jenkins’ opinion and Dr. Bielby’s expert affidavit?

Finally, we will spend some time discussing the disparate impact approach.  Could any of the practices alleged by the plaintiffs in Dukes be challenged under a disparate impact theory?  What would the plaintiffs need to show, and how might Wal-Mart defend?  What would be the advantages/disadvantages of making the claim?  Why do you think the plaintiffs chose not to?