The Issue Class

If you're part of a group of employees working for a major U.S. corporation with a gripe about unfair treatment, your collective voices were potentially muffled [after the U.S. Supreme Court's 2011 decision in Wal-Mart Stores, Inc. v. Dukes].-NBC News report, following the Wal-Mart decision1The Supreme Court's decision in Wal-Mart v. Dukes, heralded last term as a game-changer in employment class actions, has lived up to the hype.-Reuters News report, following the Wal-Mart decision2INTRODUCTIONIn 2011, in Wal-Mart Stores, Inc. v. Dukes, the U.S. Supreme Court held that the certification of one and a half million current and former female employees of Wal-Mart was not consistent with Federal Rule of Civil Procedure 23(a) and Rule 23(b)(2).3 The news reports and legal analysis of the Supreme Court's decision in Wal-Mart were largely uniform: the case was a devastating setback for millions of workers across the nation.4 The academic scholarship quickly followed suit, and decried the decision for significantly raising the bar for workers wanting to file suit against employers that run afoul of civil rights laws.5 The media analysis and academic reaction to Wal-Mart have largely been correct. The decision undoubtedly undermines the ability of workers to vindicate their rights when they have suffered discrimination.This Article does not take a position as to whether Wal-Mart was properly decided. Instead of weighing in on the merits of the case, this Article addresses the novel issue of how workplace plaintiffs can still act collectively following the decision. This Article thus focuses on how employees can preserve the class action mechanism when pursuing litigation after Wal-Mart.There are numerous ways that plaintiffs can act collectively when pursuing employment discrimination claims, even in light of the Wal-Mart decision.6 Previous work demonstrates that collateral estoppel, consolidation, and other procedural mechanisms serve as examples of such tools.7 This Article expands on that scholarship and focuses on one largely unexplored avenue to collective action that is almost as effective as traditional class action litigation: issue class certification. Although there is no complete substitute for the traditional class claim, the issue class offers enormous potential to be the best tool currently available to workers pursuing class-wide employment discrimination cases.8The Federal Rules of Civil Procedure allow a group of plaintiffs to certify certain issues common among them, even when the putative class itself has not been certified. Specifically, Rule 23(c)(4) provides that "[w]hen appropriate, an action may be brought or maintained as a class action with respect to par - ticular issues."9 Even when a class has not been permitted to proceed under Rule 23(b), then, litigants can still certify particular issues common to a class under Rule 23(c)(4).10 This Rule thus allows a court to "treat common things in common and to distinguish the distinguishable."11Issue class certification offers many of the traditional benefits of class certification under Rule 23(b).12 Most notably, the issue class provides trial judges enormous flexibility when managing a systemic case of workplace harm.13 Although class claims are different, Rule 23(c)(4) allows the judge to separate specific common questions in the case and resolve other issues individually.14 The judge can thereby tailor the certified issues to the facts of the specific case, thus leading to more efficient litigation.15 In this way, issue class certification also results in more streamlined proceedings. Courts can resolve claims that touch on a common issue a single time, while allowing the remaining issues in the case to be litigated separately.16Issue class certification is especially useful in class action employment discrimination cases, particularly after Wal-Mart.17 This is because workplace class action claims often present the two criteria often required for issue class certification: (1) systemic litigation involving a common set of facts; and (2) varying degrees of harm amongst the individual plaintiffs. …