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Wal-Mart v. Dukes: Procedure Matters

By Andrew Trask


A decade ago, Betty Dukes, a Wal-Mart greeter (one of the folks in blue vests who welcome you to the store), filed a lawsuit against her employer. She alleged that her supervisors had treated her harshly and, once she complained, had retaliated by demoting her. Rather than sue Wal-Mart on her own, she joined with six other women who also (allegedly) suffered discrimination at the company. These women included one who had been passed over for promotion, one who could not transfer to day shifts, and one who had been sexually harassed by coworkers. Together, these women claimed to represent all women at Wal-Mart, and asked for damages on all their behalf.

Last week, the Supreme Court heard oral argument on the case. The media has covered Wal-Mart v. Dukes as a gender discrimination case. And it’s true that the underlying cause of action is a violation of Title VII, the United States’s antidiscrimination statute. But the issue the Court heard is a procedural one: can the women who sued Wal-Mart bring their case as a class action? If they can, the huge damages at stake will likely induce Wal-Mart to settle on generous terms. (No company, even one as big as Wal-Mart, wants to risk a billion-dollar verdict.) If they can’t, then each woman must bring her case on her own. And while some women’s discrimination claims may be worth enough to interest a lawyer, others will not. Since the procedural question could make or break this case, it has taken on the same significance as if the Court were ruling on whether companies are allowed to discriminate against women.

So what is a class action? It’s a method of aggregating a large number of claims into a single lawsuit. Under Federal Rule of Civil Procedure 23 — the rule that authorizes class actions — the lawsuit begins with an individual plaintiff. If she can convince the court her claim is enough like those of the people she seeks to represent, the court certifies the case as a class action. Once the class is certified, the plaintiff offers proof of her individual claim at trial. If she wins, the whole class wins; but if she loses, then the whole class loses with her.

The Supreme Court heard arguments about whether the women suing Wal-Mart had demonstrated they met two of the requirements of Rule 23.

First, it considered whether the women met the “commonality” requirement. Commonality calls for every class action to have a common question of law or fact that, if answered, moves the case forward. The requirement seems simple, but can be hard to meet for a diverse group of 1.6 million women. (Hence the references to the Dukes class being “too big to certify.”) The women argued that their common question was whether Wal-Mart’s corporate culture was “vulnerable” to sex discrimination, and whether allowing managers “excessive subjectivity” in personnel decisions ended up discriminating against women.

Second, the Court considered whether the women brought the right kind of class action. Rule 23 allows for three different types of classes, each of which falls under a section of Rule 23(b). The first type (Rule 23(b)(1), not at issue here) involves cases where a ruling for one class member would deprive others of the relief they seek. The second (Rule 23(b)(2)) applies when plaintiffs ask for injunctive or declaratory relief. And the final type (Rule 23(b)(3)) applies when plaintiffs ask for money; it imposes more stringent requirements for certification and calls for more thorough notice to the class.

The women asked for an injunction, but also back pay and punitive damages. The trial court certified a class for back pay under Rule 23(b)(2) (the injunctive section) instead of (b)(3). The Court of Appeals for the Ninth Circuit held that 23(b)(2) certification was appropriate because the injunctive relief was “superior in strength” to the monetary relief.

So where does the case go now? Predicting Supreme Court rulings is not as easy as it looks, but the argument provided some clues. Justice Kennedy worried that the women’s theory “faces in two directions,” and Justice Scalia complained that he felt “whipsawed” by it. Their concern was that the plaintiffs simultaneously complained that Wal-Mart’s discriminatory culture controlled people’s decisions, but also that managers had too much discretion to ignore that culture.

Moreover, Justice Ginsburg worried about using Rule 23(b)(2) to certify a class when more than half its members could only receive monetary relief. Justice Scalia noted that forbidding monetary relief would exclude “more than half the class.” Given these concerns, it is unlikely the Court will affirm the Ninth Circuit.

It is rare for a technical question of procedure to receive so much attention. However, the way in which we try lawsuits matters. And few cases show that more vividly than the one filed ten years by Betty Dukes.

Andrew Trask, a practicing class-action lawyer, is the co-author of The Class Action Playbook, and discusses class-action strategy at www.classactioncountermeasures.com

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