On March 22, the U.S. Supreme Court issued a narrow decision in Tyson Foods v. Bouaphakeo regarding the use of statistical evidence in wage-and-hour class and collective actions and, in so doing, identified an exception from a prior ruling disapproving of such use.
In 2011, the Supreme Court forbade “trial by formula.” The plaintiffs in that sex-discrimination case proposed a large nationwide class of female employees who were subject to varying employment policies. To overcome that lack of similarity, the would-be class sought to depose a statistical sample of its members to establish the alleged discrimination. The court categorically rejected the use of statistical evidence in this manner, finding that the individual class members could not attempt to present common issues of fact and law through reliance on depositions that detailed the ways in which other employees allegedly were discriminated against by their particular managers.
