Betty Dukes and her fellow plaintiffs
Walmart is the largest private employer in America, so if you want to sue Walmart it helps to be equally large. For almost a decade, a class action suit alleging consistent discrimination against Walmart's female employees has made its way up and down the federal courts, involving as many as 1.5 million present or former employees (it's now around a half-million in the suit, based on earlier rulings) alleging disparate treatment in pay and promotions stemming from Walmart's allowing its local managers excessive discretion in their hiring and promotions. As we discussed with
the AT&T v Concepcion case this term, class actions help plaintiffs by uniting their claims together in one forum, where the power of numbers means that smaller claims are more likely to be litigated seriously.
But there are threshold requirements to having a class action certified -- the individual claims have to be sufficiently similar to each other that they can be tried in one forum, with common issues of law and fact as to the claims and defenses presented.
Today, the Supreme Court reversed the efforts of the Ninth Circuit to have the Walmart plaintiffs certified as a class action for trial -- unanimously in some parts, 5-4 in others.
The unanimous part of the decision was that the claims for backpay could not be certified under a provision generally allowing class actions for injunctive (i.e., "you can't do [x] anymore") relief, because this monetary relief was not a mere incidental add-on to that relief. What the Court held, basically, is that when the focus is on obtaining one injunction to help all plaintiffs, that type of class doesn't also allow for the individualized assessment of damages which backpay requires. There's another type of class action which does allow for monetary claims to be aggregated, but that didn't happen here -- that's a process which requires a showing that the common class questions “predominate” over issues affecting individuals—e.g., qualification for, and the amount of, backpay or compensatory damages—and that a class action is “superior” to other modes of adjudication for the class.
And that's where the five parted from the four. Justice Scalia, writing for you-know-who, argued that these claims failed to meet the "commonality" test to make them triable in one forum:
Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.
And, argued Justice Scalia, you can't get to "common" claims when arguing that the problem was too much discretion in each local Walmart, and statistical analysis demonstrating that discrimination indeed was the result was insufficient for the majority:
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. It is also a very common and presumptively reasonable way of doing business—one that we have said “should itself raise no inference of discriminatory conduct.”
...Respondents have not identified a common mode of exercising discretion that pervades the entire company... 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. Respondents attempt to make that showing by means of statistical and anecdotal evidence, but their evidence falls well short.
The statistical evidence consists primarily of regression analyses performed by Dr. Richard Drogin, a statistician, and Dr. Marc Bendick, a labor economist. Drogin conducted his analysis region-by-region, comparing the number of women promoted into management positions with the percentage of women in the available pool of hourly workers. After considering regional and national data, Drogin concluded that “there are statistically significant disparities between men and women at Wal-Mart . . . [and] these disparities … can be explained only by gender discrimination.” Bendick compared work-force data from Wal-Mart and competitive retailers and concluded that Wal-Mart “promotes a lower percentage of women than its competitors.”
Even if they are taken at face value, these studies are insufficient to establish that respondents’ theory can be proved on a classwide basis.... Some managers will claim that the availability of women, or qualified women, or interested women, in their stores’ area does not mirror the national or regional statistics. And almost all of them will claim to have been applying some sex-neutral, performance-based criteria—whose nature and effects will differ from store to store... Other than the bare existence of delegated discretion, respondents have identified no “specific employment practice”—much less one that ties all their 1.5 million claims together. Merely showing that Wal-Mart’s policy of discretion has produced an overall sex-based disparity does not suffice.
In sum, we agree with Chief Judge Kozinski that the members of the class “held a multitude of different jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed… . Some thrived while others did poorly. They have little in common but their sex and this lawsuit.”
Justice Ginsburg, for herself and the other dissenting Justices, would have looked at the evidence differently:
[Plaintiffs] allege that the company “[r]eli[es] on gender stereotypes in making employment decisions such as … promotion[s] [and] pay.” Wal-Mart permits those prejudices to infect personnel decisions, the plaintiffs contend, by leaving pay and promotions in the hands of “a nearly all male managerial workforce” using “arbitrary and subjective criteria.” Further alleged barriers to the advancement of female employees include the company’s requirement, “as a condition of promotion to management jobs, that employees be willing to relocate.” Absent instruction otherwise, there is a risk that managers will act on the familiar assumption that women, because of their services to husband and children, are less mobile than men.
Women fill 70 percent of the hourly jobs in the retailer’s stores but make up only “33 percent of management employees.” “[T]he higher one looks in the organization the lower the percentage of women.” The plaintiffs’ “largely uncontested descriptive statistics” also show that women working in the company’s stores “are paid less than men in every region” and “that the salary gap widens over time even for men and women hired into the same jobs at the same time.”
And that, the dissenting Justices argued, should have been enough:
Aware of “the problem of subconscious stereotypes and prejudices,” we [have] held that the employer’s “undisciplined system of subjective decisionmaking” was an “employment practic[e]” that “may be analyzed under the disparate impact approach.” See also Wards Cove Packing Co. v. Atonio , 490 U. S. 642, 657 (1989) (recognizing “the use of ‘subjective decision making’ ” as an “employment practic[e]” subject to disparate-impact attack).
The plaintiffs’ allegations state claims of gender discrimination in the form of biased decisionmaking in both pay and promotions. The evidence reviewed by the District Court adequately demonstrated that resolving those claims would necessitate examination of particular policies and practices alleged to affect, adversely and globally, women employed at Wal-Mart’s stores. Rule 23(a)(2), setting a necessary but not a sufficient criterion for class-action certification, demands nothing further.
...Wal-Mart’s delegation of discretion over pay and promotions is a policy uniform throughout all stores. The very nature of discretion is that people will exercise it in various ways. A system of delegated discretion ... is a practice actionable under Title VII when it produces discriminatory outcomes.
The rest gets a bit wonky, but I want to leave you with a footnote from Justice Ginsburg which explains just why too much discretion can systematically yield discriminatory outcomes:
An example vividly illustrates how subjective decisionmaking can be a vehicle for discrimination. Performing in symphony orchestras was long a male preserve. Goldin and Rouse, Orchestrating Impartiality: The Impact of “Blind” Auditions on Female Musicians, 90 Am. Econ. Rev. 715, 715–716 (2000). In the 1970’s orchestras began hiring musicians through auditions open to all comers. Id., at 716. Reviewers were to judge applicants solely on their musical abilities, yet subconscious bias led some reviewers to disfavor women. Orchestras that permitted reviewers to see the applicants hired far fewer female musicians than orchestras that conducted blind auditions, in which candidates played behind opaque screens. Id., at 738.
Bottom line: in Chief Justice Roberts's Supreme Court, business wins again. And again.
