MIAMI—Should commercial real estate firms be cautious about class action employment discrimination suits in 2014? It's not as likely as a Walmart suit but it could happen.

GlobeSt.com caught up with Andrew Melzer, a senior litigation counsel at Sanford & Heisler, to get his thoughts on employee litigation trends in 2014. There are a few lessons to be learned from other industries.

GlobeSt.com: What can we expect to see in 2014 regarding trends and legal developments in employment discrimination class litigation?

Melzer: Class actions remain a powerful tool for rooting out systematic discrimination, and 2014 will be an exciting year to see how the class vehicle is redefined and developed. We can expect a significant amount of activity in the lower courts this year—including cases litigated by our firm. As always, certification and other case decisions will be fact-specific and driven by the evidence, but we anticipate seeing cases being certified.

GlobeSt.com: Name one EEOC court case that you are closely monitoring, and why?

Melzer: Sterling Jewelers is a nationwide gender discrimination case with parallel proceedings in court and arbitration. It will be interesting to see how these different modes operate in tandem, with the EEOC moving alongside private enforcement actions.

At the same time, Sterling illustrates the ways in which private enforcement might prove more favorable for employees than the EEO process. Just this month, the magistrate judge in Sterling Jewelers recommended dismissal of the EEOC's pattern or practice claims in a decision we believe reflects an unduly restrictive view of the law and the evidence in that case.

We will be keeping an eye on the EEOC's objections to the recommendation. Regardless of the outcome, plaintiffs may find success through the private enforcement action happening in arbitration—where the hearing on Plaintiffs' motion for class certification is scheduled to take place next week on February 5.

GlobeSt.com: What has been the major strategy that you have seen the plaintiffs' class action bar develop in response to the Supreme Court's decisions in Walmart v. Dukes?

Melzer: Obviously, parties on both sides need to pay careful attention to the lessons of Walmart. The plaintiffs' bar has responded to the case by paying heed to the Court's direction that even closer attention should be paid at the class certification stage to precisely what kind of claims and classes it is that the court is considering certifying.

We take additional steps from the outset of the case to narrow and clarify exactly who fits in a class or subclass and what kind of discrimination is taking place. In addition, Plaintiffs need to consider the whole range of ways in which certification might be proper, including hybrid (b)(2)/(b)(3) certification; partial certification under (c)(4); and opt-in ADEA/EPA classes.

Instant Insights /

Should You Be Worried About Employee Lawsuits?

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