[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] in Wal-Mart v. Dukes [Cornell LII backgrounder; JURIST report] that a group of women seeking to recover damages from Wal-Mart failed to meet the requirements for class certification. The case, a Title VII [text] gender discrimination class action lawsuit estimated to include more than 1.5 million women, was filed in 2001 by female Wal-Mart employees [class website] who contend that Wal-Mart’s nationwide policies result in lower pay for women than men in comparable positions and longer waits for management promotions than men. Wal-Mart appealed to the Supreme Court in August after the US Court of Appeals for the Ninth Circuit upheld class certification [JURIST reports] in April. The Supreme Court held that the class action did not satisfy Federal Rule of Civil Procedure 23(a)(2) [text], which requires a class to prove that class members have common “questions of law or fact.” The court distinguished between an employee’s claim that she was individually discriminated against and a claim that the company has a policy of discriminating against a class of individuals:
Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate-impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. 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.
The plaintiffs failed to provide “significant proof” that Wal-Mart’s promotion program, though granting wide discretionary authority to store management, “operated under a general policy of discrimination.” Wal-Mart also claimed that class certification was improper under Federal Rule of Civil Procedure 23(b)(2), which does not authorize certification of claims seeking monetary relief, because the class sought primarily monetary compensation in the form of back pay. The Supreme Court agreed and ultimately reversed the appeal court ruling.
Justice Ruth Bader Ginsburg, along with Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, concurred in part and dissented in part. Ginsburg argued that the majority conflates the 23(a) commonality requirement with the 23(b)(3) “predominance” criteria, a much higher standard to satisfy. She wrote that the class does in fact satisfy 23(a)’s threshold requirements but fails to meet the 23(b)(2) certification category. The issue of whether the class satisfies 23(b)(3), Ginsburg said, is a matter that should be left to the lower court on remand.