Wal-Mart: Too Big to Discriminate?


Yesterday's U.S. Supreme Court decision in Wal-Mart v. Dukes (pdf) — the largest employment-discrimination suit ever filed in the United States — reflects precisely the kind of overreach that makes so many of the decisions by the court's five-member conservative majority sweeping and regressive.

It's not as though experts expected that a majority of the justices would allow the case to proceed as a class action of 1.5 million women, challenging what they contend are the retail giant's discriminatory employment practices.


Class action is a procedural device that allows similarly situated plaintiffs who are injured by the same defendant to group their claims together. It allows plaintiffs, who would otherwise be unable to afford to vigorously prosecute a legitimate claim against a larger, well-resourced defendant, to aggregate their claims to achieve economies of scale.

The class action device also saves judicial resources and litigation costs for defendants by permitting them to collectively develop documents and testimony on key issues in the case. The modern class action has been especially important and, in fact, was particularly designed to advance the litigation of civil rights actions by private parties. Employment-discrimination class actions brought under Title VII of the Civil Rights Act of 1964 are among the most routine class actions.

Nevertheless, there were warning signs that the Dukes plaintiffs would not fare well with the Supreme Court. It has long been understood that the court is wary of nationwide class actions. In addition, the plaintiffs in this case had sought to have their class of women employees seeking back pay certified under the class action device — Rule 23(b)(2) — reserved for plaintiffs seeking to stop defendants from engaging in discrimination, rather than wanting monetary relief as the victims of discrimination.

Class actions seeking monetary relief are more often certified under Rule 23(b)(3), which requires parties seeking class certification to demonstrate that common issues "predominate" among their claims and to prove that a class action is the "superior" method of advancing the claims. These showings of "predominance" and "superiority" are generally the most difficult burden for class claimants seeking certification to overcome, and make certification under 23(b)(3) particularly challenging.

But in its decision in Wal-Mart v. Dukes, the Supreme Court did not strike down the plaintiffs' claims on the grounds that it could not advance as a (b)(2) class action and remand the case to the trial court to allow the plaintiffs to seek certification under (b)(3). Nor did the court even pre-empt the plaintiffs from doing that by merely suggesting that the plaintiffs could not meet the predominance and superiority burdens of (b)(3) certification. Instead, the court struck a blow at all employment-discrimination class actions by deciding that the Wal-Mart class action failed because it could not meet the least stringent requirements for class certification.

In Wal-Mart v. Dukes, the record is replete with common questions of both law and fact. The principal common question had been identified by the district court: "whether Wal-Mart's pay and promotions policies gave rise to unlawful discrimination."


But this is a common question only if you accept as conceivable the theory of systematic employment discrimination in the modern workplace advanced by the plaintiffs. Justice Antonin Scalia, writing for the majority, makes clear that the conservative justices do not. They believe only in narrowly framed employment discrimination — the kind they read about in law journals in the 1970s. This form of discrimination requires the identification of individual discriminatory actors and a clear company policy of discrimination.

As Scalia explains, to advance as a class, the plaintiffs' claims "must depend upon a common contention — for example, the assertion of discriminatory bias on the party of the same supervisor." Ah, yes, the racist or sexist supervisor. This, the conservative justices might understand. 


Likewise, Scalia discounts the plaintiffs' claim that Wal-Mart's practices are discriminatory, in part because "Wal-Mart's announced policy forbids sex discrimination." What sane employer in the 21st century doesn't have a policy forbidding discrimination? This is the reality of contemporary discrimination — employers will have stated policies against discrimination, even as they signal through their informal workplace practices and procedures that men are to be favored for supervisory positions. 

But a challenge to the practices of a company that sets a climate and imposes a framework that allows for widespread, across-the-board discrimination cannot proceed, according to the court's majority, who like their discrimination individual and old school. In this sense, the Dukes claimants' compelling evidence of gender discrimination in promotions at Wal-Mart, and a culture that stereotyped women as "little Janie Qs," really was too big to win.


But by suggesting that the Dukes plaintiffs have failed to identify a common question of law or fact under Rule 23(a), the court potentially has struck a blow against all employment-discrimination class actions — big and small. The "commonality" requirement under 23(a) has never proved a formidable obstacle to employment-discrimination claimants. As Justice Ruth Bader Ginsburg explained in her dissent, the existence of one common question has been sufficient to satisfy that requirement. Now the court has raised the bar. 

Particularly chilling is the court's decision to specifically agree with the criticism offered by Judge Kozinksi, the chief judge of the U.S. 9th Circuit Court of Appeals. He described the plaintiffs as having "held a multitude of different jobs, at different levels … for variable lengths of time … Some thrived while others did poorly."


This will be true of every class of plaintiffs in an employment-discrimination suit. If this variability in a plaintiff class is viewed as evidence that the group lacks "commonality," then many more employment-discrimination class action cases are doomed.

Sherrilyn A. Ifill writes about the law for The Root. She is a professor at the University of Maryland School of Law and chair of the board for U.S. programs at the Open Society Institute.