Wal-Mart Stores, Inc. v. Dukes: A Loss for Group Justice

By Meredith Carpenter

The Supreme Court’s recent 5-4 decision to deny class certification in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011) struck a blow to group justice.  In the suit, the three named plaintiffs alleged that female employees at Wal-Mart stores were discriminated against in promotions and pay decisions as a result of the company’s corporate practices, which include a policy of allowing managers to exercise discretion in employment matters.  The Court (Chief Justice Roberts and Justices Scalia, Kennedy, Thomas and Alito) held that the plaintiffs did not establish commonality among the class—the expert testimony of a sociologist who determined that Wal-Mart’s corporate culture was vulnerable to discrimination and evidence from approximately 120 women who experienced discrimination was not enough to convince the Court that gender discrimination is common to all Wal-Mart stores.

In so ruling, the Court failed to recognize the need for group justice, essentially insisting that discrimination only exists in relation to individuals in the absence of an explicit policy of discrimination.  Although this decision is the latest and most jarring in the Court’s discrimination jurisprudence, it is not an aberration.  Protection against discrimination was at its peak after the Civil Rights Act of 1964, when the Supreme Court clearly was willing to scrutinize the record carefully to see if discrimination as alleged in a complaint existed in fact.  Federal Rule of Civil Procedure 23(b)(2) was amended during this time, in part to protect certain classes from discrimination, since class actions were an effective way of attacking pervasive discrimination in society.  However, beginning with McCleskey v. Kemp in 1987, the Court’s rulings slowly stripped away this widespread protection.  Now, the Court presumes that there is no discrimination when faced with a discrimination suit, and it imposes ever-more-stringent requirements for proof.  Clearly these rulings reflect the Court’s attitude that discrimination is no longer pervasive in our society, or that if it is, it no longer needs to be remedied in court.

It hardly needs to be said that these assumptions are incorrect.  Although we have come quite a way as a society over the past 47 years, gender discrimination and its effects still exist.  Women receive 77 cents to the male dollar, they are less often promoted, and only approximately 14% of executive officers at Fortune 500 companies are female.  It is illuminating to note that all three of the female justices were in the dissent on the issue of class certification, acknowledging that an inherent bias against women is still present in society.  Justice Ginsberg, dissenting, noted that “[m]anagers, like all humankind, may be prey to biases of which they are unaware. The risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes.”

Perhaps the majority of males on the Court do not have the requisite experience to comprehend the continued existence of pervasive gender discrimination.  In rejecting the notion that a policy of discretion is one of discrimination in such a large corporation, the majority seemed incredulous that widespread discrimination could exist.  Justice Scalia asserted that it is “unlikely that all managers would exercise their discretion in a common way without some common direction.”  The majority did not believe that discrimination could occur throughout such a large group, accepting Wal-Mart’s argument that the class was too large to share a common issue.  The proposed class included around 1.5 million women—those women who had been employed at a Wal-Mart store any time after December of 1998.  Although 1.5 million is certainly a large number, it is undeniable that all these women come within the same ambit as Wal-Mart employees and that they were all subject to the same corporate culture and societal influences.  Had the Court acknowledged the existence of pervasive discrimination and the idea of group justice, it likely would have found sufficient commonality in the class.  Instead, by accepting Wal-Mart’s arguments, the Court came close to creating a large-employer exception to justice.

A result of the Wal-Mart ruling is that plaintiffs will bring smaller class actions that are more focused on particular instances of discrimination.  Instead of being able to attack broad-sweeping discrimination at its root, plaintiffs will be limited to challenging individual manifestations of the company’s practices.  Presumably the Court’s ruling will also affect all other employment discrimination cases, not just those concerning gender.  Class action suits brought for race, color, religion, and national origin will need to meet this higher burden of commonality.  Additionally, the ruling may affect class action suits involving other areas of law: any case where a pattern of a corporate culture is at issue will require more individualized allegations of unlawful practices.

And if plaintiffs are forced to bring individual suits, they will not bring the social change that is still greatly needed.  The goal of class action litigation under Rule 23(2)(b) is often to obtain injunctive and declaratory relief to end a discriminatory or otherwise harmful practice—money damages may not be the primary goal.  In individual suits, plaintiffs will likely focus more on money damages rather than injunctive relief; and in fact, most aggrieved employees are unlikely to have the resources, financial or emotional, to bring individual suits.  The Wal-Mart decision does not just affect the livelihood of class action attorneys, as some would have us believe; it also removes a crucial tool for remedying societal infirmities.

Meredith Carpenter is a 2L student at Cornell Law School.  She worked as the intern for the new Litigation Committee of the NLG Massachusetts Chapter this past summer.