In Dukes v. Wal-Mart Stores, Inc., 131 S. Ct. 2541 (2011), the Supreme Court held that it was error to certify a class of 1.6 million women alleging sex discrimination in employment. But what about a smaller, yet still enormous class?

In Bell v. Lockheed Martin Corp., Case No. 08-6292 (RBK/AMD) (Dec. 14, 2011), the United States District Court for the District of New Jersey addressed the sex discrimination claims of a much smaller class of 17,000 women in a case claiming gender discrimination in promotions and compensation. The class was but 1 percent of the size of the putative Dukes class.

Lockheed Martin provides information technology services to the United States government. The plaintiffs, like the plaintiffs in Dukes, sought to assert Title VII claims for alleged sex discrimination in promotions and compensation. Like the plaintiffs in Dukes, they alleged that women were promoted more slowly than men and paid less for comparable positions. They also claimed that a “word of mouth” means of announcing potential positions for advancement had a disparate impact on women. Given that during the pendency of the case (until last summer) the plaintiffs in Dukes had had scored substantial successes, not surprisingly the Lockheed plaintiffs appear to have patterned their claims and arguments after those raised in Dukes.

Lockheed moved the court to deny certification before the plaintiffs actually moved to certify the class, an increasingly common strategy. By the time of the court’s ruling, the case had been pending for three years and there had been extensive discovery.

Given the similarities with the Dukes case, it is not surprising that the district court’s analysis tracks that of the Supreme Court in that case. The court first addressed the issue of whether the plaintiffs could pursue a class under Rule 23(b)(2). To get around the Dukes Court’s clear holding that such claims should not be certified when there are claims of individualized relief (such as back pay), the plaintiffs argued that they would not seek compensatory or punitive damages. The district court, however, quoting Dukes, found that the individualized claims of back pay alone meant that Rule 23(b)(2) did not apply.

Of equal importance, the court also found that there was no commonality under Rule 23(a)(2). The plaintiffs sought to avoid Dukes’ application by asserting that they were asserting a disparate impact claim pursuant to the Supreme Court’s earlier splinter decision in Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988). Again, however, the court found that the alleged discriminatory practices giving rise to the claimed disparate impact were “substantially similar” to those alleged in Dukes. Further, it rejected the plaintiffs’ statistical showing, finding that they could not demonstrate, for example, the there was “discriminatory bias on the part of the same supervisor.” Dukes, 131 S. Ct. at 2551.

Finding the case to be governed by Dukes, the Court denied certification.

The Bottom Line: Most lower courts appear to be following Dukes. Defendants are being successful in opposing certification when the plaintiffs cannot identify a single individual or practice that they claim demonstrates a viable class.