Media

Rarely does this blog cover US Supreme Court cases, and even more rarely do I tread into employment law. However, the June 20, 2011 ruling from the Court on the Wal-Mart sex-discrimination case is a major decision with a substantial impact on all class actions. In Wal-Mart v. Dukes, Docket No. 10-277, reversed the Ninth Circuit opinion which had allowed the certification of a class consisting of all female Wal-Mart employees employed by the store since December 26, 1998—a group totaling 1.5 million women. The Court unanimously held that the current class should not have been certified, but split 5-4 on whether there was a threshold showing of “commonality” for the entire class of women in general.

The fundamental failing of the class, according to the majority, was the lack of any actual corporate policy that limited the advancement and pay of women. As the majority noted:

The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of allowing discretion by local supervisors over employment matters. On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices[.]

Slip Op. at 14. The Court noted that managerial actions resulting in disparate treatment could take place by managers acting on a range of motives. While some managers might implement a truly gender neutral program, others could deliberately discriminate, and act in every way in between. Since all the women of Wal-Mart were suing, even those under presumptively fair managers, the Court could not find enough commonality to justify a class action. As the Court put it, “Respondents have not identified a common mode of exercising discretion that pervades the entire company.” Id. at 15.

The Court also rejected the use of “social framework” expert opinion to justify the class. The plaintiffs in the case sought to justify the class by having an expert:

testif[y] that Wal-Mart has a “strong corporate culture,” that makes it “‘vulnerable’” to “gender bias.” Id., at 152. [The expert] could not, however, “determine with any specificity how regularly stereotypes play a meaningful role in employment decisions at Wal-Mart. At his deposition . . . Dr. Bielby conceded that he could not calculate whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” 222 F. R. D. 189, 192 (ND Cal. 2004).

Id. at 13. This type of speculation and supposition dressed up as science was held to be insufficient (if not inadmissible) to prove any type of uniform treatment by Wal-Mart that would show commonality among the millions of claimed acts of discrimination. With this weak of an evidentiary foundation, it is somewhat surprising that Justice Ginsburg’s dissent went out if its way to paint the holding as a broad rejection of even the possibility of a class action that would include all women in a corporation. In fact, the majority opinion held that class certifications based on discretion by low-level managers were still valid and permissible, if the class members could point to a specific employment practice or policy that generated the discrimination. Id. at 16–17. Simply alleging that many or most Wal-Mart managers are men, and alleging that men can’t help themselves but to discriminate (or that the corporate culture ingrains discrimination subconsciously), is just not enough.