Wal-Mart Stores, Inc. v. Dukes

PETITIONER: Wal-Mart Stores, Inc.
RESPONDENT: Betty Dukes, et al.

DOCKET NO.: 10-277
DECIDED BY: Roberts Court (2010-2016)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 564 US (2011)
GRANTED: Dec 06, 2010
ARGUED: Mar 29, 2011
DECIDED: Jun 20, 2011

Joseph M. Sellers - for the respondents
Theodore J. Boutrous Jr. - for the petitioner

Facts of the case

Betty Dukes, a Wal-Mart "greeter" at a Pittsburg, Calif., store, and five other women filed a class action lawsuit in which they alleged that the company's nationwide policies resulted in lower pay for women than men in comparable positions and longer wait for management promotions than men. The certified class, which in 2001 was estimated to comprise more than 1.5 million women, includes all women employed by Wal-Mart nationwide at any time after December 26, 1998, making this the largest class action lawsuit in U.S. history. Wal-Mart has argued that the court should require employees to file on an individual basis, contending that class actions of this size – formed under Rule 23(b) of the federal rules of civil procedure — are inherently unmanageable and unduly costly. The U.S. Court of Appeals for the Ninth Circuit has three times upheld the class certification.


Can the small group of women who began the case represent a gigantic class of women?

Media for Wal-Mart Stores, Inc. v. Dukes

Audio Transcription for Oral Argument - March 29, 2011 in Wal-Mart Stores, Inc. v. Dukes

Audio Transcription for Opinion Announcement - June 20, 2011 in Wal-Mart Stores, Inc. v. Dukes

Antonin Scalia:

This case is here on writ of certiorari to United States Court of Appeals for the Ninth Circuit.

It concerns one of the most expansive class actions in our history.

Respondents, women who are current and former employees of petitioner Wal-Mart, brought this suit against the company on behalf of themselves and a nationwide class of some 1.5 million female employees.

They alleged that Wal-Mart's local managers exercise their considerable discretion over pay and promotions disproportionately in favor of men in violation of the disparate impact and disparate treatment prohibitions of Title VII of the Civil Rights Act of 1964.

Their suit seeks injunctive and declaratory relief, punitive damages and backpay.

The District Court certified respondents' proposed class after finding that it satisfied the requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(2).

On appeal, the Ninth Circuit made a few modifications to the class but substantially affirmed the District Court's certification order.

We granted certiorari to decide whether the class was properly certified.

We conclude that it was not, for two independent reasons.

The first reason is addressed in Part II of my opinion for the Court, which is concurred in by the Chief Justice and Justices Kennedy, Thomas and Alito.

Federal Rule of Civil Procedure 23(a)(2) requires a party seeking class certification to demonstrate that "there are questions of law or fact common to the class".

To satisfy that Rule, a plaintiff's claims must depend upon a common contention that is capable of classwide resolution which means that determination of its truth or falsity will resolve in one stroke an issue that is central to the validity of each one of the claims.

Wal-Mart is the nation's largest private employer.

It operates four types of retail stores throughout the country which are divided into seven nationwide divisions and subdivided into 41 regions of 80 to 85 stores apiece.

Each store has between 40 and 53 separate departments and 80 to 500 staff positions.

In all, Wal-Mart operates approximately 3400 stores and employs more than 1 million people.

Because respondents wish to sue about literally millions of employment decisions at once, they need some glue holding the alleged reasons for all those decisions together.

Otherwise, it will be impossible to say that an examination of all the class members' claims for relief will produce a common answer to the question that matters to Title VII, why was I disfavored?

One of our prior cases, General Telephone Company of Southwest versus Falcon describes how the commonality issue must be approached.

That case explained that there is a wide gap between an individual's claim of discrimination and the existence of a class of persons who have suffered the same injury as that individual, so that the individual's claim and the class claim will share common questions of law or fact.

On the facts of this case, according to Falcon, bridging that game -- bridging that gap requires "significant proof" that Wal-Mart "operated under a general policy of discrimination".

That proof is entirely absent here.

As respondents acknowledge, Wal-Mart's official corporate policies forbid sex discrimination.

The only direct evidence of a general policy of discrimination respondents produced was the testimony of a sociologist, who concluded that Wal-Mart's strong corporate culture made the company "vulnerable" to gender bias.

But that sociologist admitted that he could not calculate whether -- "whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking".

So his testimony is worlds away from the significant proof of a discriminatory policy that Falcon requires.

Indeed, 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 human -- of a uniform employment practice that would provide the commonality needed for a class action.

It is a policy against having uniform employment practices, that one particular supervisor exercises his discretion in a discriminatory way, does -- does nothing to establish -- be patient, that any other manager does so.

In a company of Wal-Mart's size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction.