Bill would ease path for class certification in employer bias suits

Once again, Democrats in Congress have proposed legislation that would negate a recent Supreme Court ruling.
This time around, the Equal Employment Opportunity Restoration Act (EEORA) has been introduced in both houses in reaction to the High Court’s ruling in Wal-Mart Stores v. Dukes.
In that case, the justices applied a new stricter standard for employees who seek class certification to asset an employment law claim. The court ruled that because Wal-Mart allowed its managers a great deal of leeway in making decisions affecting employees, it’d be impossible to find “commonality” among the employees who were alleging gender bias.
The court said that to proceed as a group, the women first had to show “convincing proof of a companywide discriminatory pay and promotion policy.”
The sponsors of the EEORA — Rep. Rosa DeLauro (D-CT) and Sens. Al Franken (D-MN) and Richard Blumenthal (D-CT) — say that decision, in essence, put the plaintiffs in the position of having to prove their case before the evidence is in.
In a press release, Rep. Lauro said, “This high standard is typically reserved for a trial on the merits, not for class certification … (EEORA) would restore the ability of a group of plaintiffs to challenge discriminatory employment practices by clarifying that plaintiffs need not prove their case at the class certification stage.”
The bill would allow an employee to sue on behalf of other workers as long as their claims are substantially similar and they allege having been subject to an employment practice that has adversely affected the group.
The Equal Employment Opportunity Restoration Act is H.R. 5978 and S. 3317.