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In Wal-Mart Stores, Inc. v. Dukes, the United States Supreme Court unanimously upended the effort to 1.5 million female employees of Wal-Marts to maintain a class action for sex discrimination under Title VII. In so doing, the Court had to pass on two technical issues of class action law. The first of these was whether there were “sufficient common question of law or fact” in the various individual complaints that allowed them to be fused into a single class action. The second question was whether the class action in question could be brought under rule 23(b)(2), which was reserved for those cases in which the plaintiffs’ primary request was for injunctive or declaratory relief, in which claims for individual damages are but incidental to the former.
The Court was unanimous in rejecting this claim on this second, technical question, but was deeply divided on the first question, where the four liberal dissenters were willing to give the plaintiffs’ another chance to reformulate their suit as an class action under rule 23(b)(3) for damages.
A bit of an explanation is needed, which in turn depends on how one looks at the facts of this case. The law suit in Dukes was brought by three named plaintiffs. Dukes herself had been once promoted and twice demoted. Kwapnoski had been promoted once but yelled at by her manager who told her to ‘doll up” a bit more. Arana had been rebuffed on several internal complaints, and eventually fired for failure to comply with Wal-mart’s firing policy.
If you don’t see a common thread in these cases, then you are with the majority. If you think that these three instances, bolstered by several hundred more anecdotes of the same sort do evince a cultural blind spot in the company that could motivate all individual decisions, you are with the dissenters, whose view was that unconscious sexism could be found to lay at the core of these decisions.
On this one, I confess that the majority, led by Justice Scalia, seems to have much the stronger point. Wal-Marts has 3,400 hundred stores divided into 41 regional division, and adopts a conscious policy to decentralize their hiring decisions under broad guidelines. There is nothing in the general guidelines that promotes or even tolerates discrimination at the store level, and much that is tended to counter it. The argument for commonality thus has to depend on unconscious discrimination, which may work in some cases, but hardly in all, given the number of female supervisors within Wal-Marts. Each of these individual cases has personnel records that are hard to sort out, and it just defies credibility to think that the global condemnation should be able to carry the day in the face of these huge internal variations. Let the dissenters prevail, and in every case, a boilerplate claim of discrimination is sufficient unto the day.
So the case then goes to the second question of the type of class. By way of background, an injunction or declaratory order is a command to the defendant to take a given step that is common to all members of the class. A requirement that said that certain deductions could not be taken from a paycheck meets that standard, as does a rule that says this or that element cannot be taken into account in evaluating promotions. But the individual damage claims are the antithesis of the common elements, and that is really what is at stake in these particular instances where back pay was the main objective. All nine justices realized that this case did not fall within this (b)(2) category, and hence were in favor of reversing the judgment.
But here is where differences arise. The conservative five would just throw the case out, because the want of commonality precludes all class actions. The dissenters thought that the case could be brought under (b)(3), where damages are allowed, so long as individual plaintiff’s are allowed to opt out of the class. Here too there is a question of whether the common elements “predominate” over the individual ones, and the dissenters were prepared to go down that road. To my mind, the thumbnail sketches of the three individual cases show just how many fact-bound issues there are. I cannot conceive of any way in which there could be individualized determinations the could be representative of the group, so that it looks as though there is no reason to go through the agony of separate cases.
Justice Ginsburg, writing for the four liberal dissenters, was driven by the specter that many of these cases of discrimination could escape detection. She should have focused more on the greater risk on the opposite side that huge class actions could paralyze large corporations with groundless discrimination lawsuits that it takes millions of dollars to defend. There are other forms of government oversight that could deal with these issues, should they arise. Indeed, there is even the prospect of smaller class actions with female employees who do have more interests in common. But as to this particular case, the quicker it disappears in the rear view mirror, the better.