I have written often about the application of the Supreme Court landmark ruling in Wal-Mart Stores v. Dukes to class action wage hour cases.  I have lauded the holding, noting that defense practitioners were successfully utilizing it in defeating motions for conditional certification in FLSA collective actions.  It now appears that Congress may be legislating away the holding in Dukes, as it has done for other Supreme Court decisions.

On the very anniversary date of the issuance of Dukes, Senator Al Franken, D-Minn., and U.S. Congresswoman Rosa DeLauro, D-Conn., introduced the Equal Employment Opportunity Restoration Act.  If this becomes law, it will liberalize the tests under which plaintiffs could seek relief in favor of a class or group in a discrimination lawsuit.

"American workers should have the right to hold their employers accountable when they believe they’ve been the victims of workplace discrimination," Franken said at a press conference.  "If workers can’t seek justice without first proving an impossible standard, then justice is denied.”
The Congresswoman stated that the Dukes ruling “upended decades of judicial practice and precedent,” and “conflated the standards necessary for groups of employees to proceed together with discrimination claims with what has historically been required to prove the merits of the actual case.”

The bill stated 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.”

If this bill becomes law, the adverse impact to this newfound employer defense/tactic is apparent.  I have stressed that the individuality defense, along the lines of the principles set forth in Dukes has worked wonders in defeating these motions.  Just as the spillover to FLSA was good under Dukes, the negative creep from the legislation (explicit or implicit) would likely undo the good (from my side) that the decision accomplished.