Any SoSH lawyers have an idea of how Flores’s attorneys can get around Walmart v. Dukes? This seems like precisely the sort of claim that the Supreme Court has held cannot be adjudicated on a class basis.
Flores can of course sue individually for discrimination, but that has to go through an administrative process first, as Flores’s lawyers acknowledge in the complaint. And even when Flores’s individual case proceeds in court, I don’t think it will put the NFL’s personnel policies on trial in the way people are eagerly anticipating — though it certainly could air the Dolphins’ dirty laundry.
I agree, there are issues with class certification. Those issues have been discussed already in the thread.
As pleaded, though, he doesn't
need to go through the EEOC administrative process first--he suing under 1981 for discriminatory making and enforcement of contracts (and says he will amend to add a Title VII claim later,
i.e., employment discrimination). That claim doesn't require a right to sue letter. And, of course, he has NY and NJ state discrimination claims which are presumably (and certainly, under NY law) less administratively onerous. The correct question is how he gets by
Comcast on the 1981 claim. Here's a
summary.
The claim is a bit barebones on the 1981 theory. It may be vulnerable. But I'm probably letting it go forward at this stage if I'm the trial judge, because (i) the state law discrimination claims are fine; and (ii) if the court dismisses the 1981 claim, it loses jurisdiction before the Title VII claim is ripe, which will provide an alternate basis upon which to assert jurisdiction. If it were bounced, he
could refile in state court. But I don't see a federal judge voluntarily giving up this case so quickly, just because Flores filed timely (before the EEOC could issue the right to sue letter, which is just a ministerial act, essentially).