Legislation introduced in both the House and Senate on Thursday would lower the bar for class action certification in employment discrimination cases, and effectively invalidate last year’s Supreme Court decision in Wal-Mart Stores, Inc. v. Dukes. In that case, the Supreme Court adopted a more rigorous standard for determining when a case may proceed as a class action. Based on Dukes, it is no longer sufficient for plaintiffs seeking class certification to allege a common question of law or fact. Instead, the Court held, they must establish that a classwide proceeding will generate common answers that will resolve the central issues in the case “in one stroke.” The Court noted that “[d]issimilarities within the proposed class ...have the potential to impede the generation of common answers.” More specifically the Court held that company practices permitting subjective decision-making by managers are insufficient to establish sufficient commonality to warrant a discrimination class action unless there is “significant proof that an employer operated under a general policy of discrimination.”

The Equal Employment Opportunity Restoration Act (pdf) (H.R. 5978, S. 3317) introduced in the House by Rep. Rosa DeLauro (D-CT) and in the Senate by Sens. Al Franken (D-MN) and Richard Blumenthal (D-CT), seeks to “restore employees’ ability to challenge, as a group, discriminatory employment practices, including subjective employment practices.”

The bill provides that a representative may sue on behalf of all members of the group if the representative party shows, by a reasonable inference, that (1) the members of the group are so numerous that their joinder is impracticable; (2) the claims of the representative party are typical of the claims of the group the representative party seeks to represent and the representative party and the representative party’s counsel will fairly and adequately protect the interests of the group; and (3) the members of the group are, or have been, subject to an employment practice that has adversely affected or is adversely affecting a significant portion of the group’s members. The bill defines “subjective employment practice” as

(A) an employer’s policy of leaving personnel decisions to the unguided discretion of supervisors, managers, and other employees with authority to make such personnel decisions; or

(B) an employment practice that combines a subjective employment practice, as defined in subparagraph (A), with other types of personnel decisions.

A representative seeking to bring the class action suit would be permitted to challenge a subjective employment practice “to the same extent as the party may challenge any other employment practice covered by the covered employment statute in such an action.” Moreover, the bill would establish that:

The fact that individual supervisors, managers, or other employees with authority to make personnel decisions may exercise discretion in different ways in applying a subjective employment practice under the covered employment statute shall not preclude a representative party from filing a corresponding group action under this section.

The measure states further that a court – in deciding whether to certify the class – may take into consideration an employer’s written nondiscrimination policy “only to the extent that the employer demonstrates that the policy has been consistently and effectively used to prevent and, where necessary, promptly correct discrimination against the group.”

In a press release, Rep. DeLauro said:

Last June, in a 5–4 decision, the Supreme Court blocked [a gender discrimination] case from proceeding to trial as a class action, concluding that, to proceed as a group, the women first had to show "convincing proof of a companywide discriminatory pay and promotion policy." This high standard is typically reserved for a trial on the merits, not for class certification. . . . The bill 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.

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