In a significant victory for plaintiffs, the U.S. Court of Appeals for the Fourth Circuit ruled
yesterday that a putative class of plaintiffs who work at Family Dollar
Stores and allege disparate payment practices based on sex should be
allowed to amend their complaint, and that they might be able to satisfy
commonality under the Supreme Court's 2011 decision in Wal-Mart v. Dukes
(holding that a nationwide class of female Wal-Mart employees had not
shown that the company operated under a common policy of
discrimination).
The plaintiffs alleged a set of practices that distinguish the case from Dukes,
including salary policies that perpetuate prior discrimination, a
practice of granting exceptions to pay ranges disproportionately in
favor of men, and a policy providing higher pay for mangers hired from
outside (a group that is disproportionately male) as compared to those
promoted from within (a group that is disproportionately female).
The 2-1 panel majority distinguished Dukes in two ways: first, even though there is some reliance on discretion (as in Dukes),
here, specific corporate policies and practices were alleged; and
second, the discretion was applied at the level of upper management, not
local supervisors.
