Thank you for contacting me about the Equal Employment Opportunity Restoration Act of 2012 (S.3317). I appreciate hearing your views on this subject.
On June 20, 2012, Senator Al Franken (D-MN) introduced the Equal Employment Opportunity Restoration Act (S.3317). This legislation is in response to the Wal-Mart v Dukes Supreme Court decision in June 2011 and would establish an alternative mechanism for filing class action lawsuits. In Wal-Mart v Dukes, the Supreme Court handed down a decision that prevented Betty Dukes from proceeding with a lawsuit on behalf of the female Wal-Mart employees. Employees can form a class and file a lawsuit if they are able to establish certain requirements outlined in Rule 23 of the Federal Rules of Civil Procedure. Rule 23 identifies commonality, numerosity, typicality, and adequacy as four required criteria to form a class. In Dukes v. Wal-Mart, the Supreme Court ruled that the Wal-Mart group lacked commonality and would need to show “convincing proof” of company-wide discrimination to file a class action lawsuit. In effect, this decision narrowed the scope of what is acceptable for a group of plaintiffs to receive class certification and proceed with a trial.
If enacted, the Equal Employment Opportunity Restoration Act would create a new judicial procedure, known as group action, that could be used in employment discrimination cases and would allow one or more plaintiffs to file class actions. This legislation would not require plaintiffs to prove their case at the class certification stage under group action. Proponents of this legislation argue it would make it easier for plaintiffs to bring forward discrimination cases. Opponents argue that the Supreme Court has adequately limited class action lawsuits in an effort to limit frivolous cases and put a burden on the judicial system.
This legislation has been referred to the Senate Judiciary Committee for further action. Similar legislation (H.R.5978) was introduced by Rep. Rosa DeLauro (D-CT) in the House of Representatives on June 20, 2012, and has been referred to the relevant committees of jurisdiction for further consideration. Should this or similar legislation come before the full Senate, I will keep your views in mind.
Thank you again for contacting me.