Seyfarth Synopsis: The
U.S. Supreme Court's decision in Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338 (2011), still lords over employment
discrimination class actions nearly a decade later. Indeed, Nelson,
et al. v. Pace Suburban Bus, et al., No. 17 C 7697, 2020 WL
6565241, at *1 (N.D. Ill. Nov. 9, 2020), is a reminder that
plaintiffs attempting to certify class discrimination claims face
significant commonality hurdles when the alleged discriminatory
policy is discretionary. In Nelson, the U.S. District Court for the
Northern District of Illinois
denied class certification solely on commonality grounds
because the Plaintiffs failed to demonstrate that their purported
common question – whether the company's disciplinary
actions were discriminatory – can be answered on a classwide
basis.
