On this day 10 years ago, lawyers Theodore J. Boutrous Jr. and Joseph M. Sellers each stood behind the lectern to argue the case Wal-Mart v. Dukes before the U.S. Supreme Court.
Betty Dukes brought a class action under Title VII of the Civil Rights Act of 1964, alleging that Wal-Mart had given its local managers excessive discretion over pay and promotions, which had been exercised disproportionately in favor of men. A federal district court certified Dukes’s class, which included approximately 1.5 million women, including all those who presently worked or had previously worked at a Wal-Mart store since 1998. The 9th Circuit subsequently affirmed the certification of the class.
On March 29, 2011, the parties met in the Supreme Court to argue whether or not the class adequately fulfilled the commonality requirement of Rule 23(a). As those familiar with the case know, Wal-Mart prevailed. Justice Scalia, delivering the opinion of the Court, stated that in order for commonality to be found, the plaintiffs needed to show that Wal-Mart “operated under a general policy of discrimination” and the testimony of sociologist Dr. William Bielby that Wal-Mart was “vulnerable” to gender discrimination, was insufficient for the Court.
Wal-Mart v. Dukes stands today as a difficult bar for plaintiffs’ side litigation. Now, in order to certify a class, a court must conduct a “rigorous analysis” to determine whether or not the class meets all requirements of Rule 23(a). And the Supreme Court has held that such an analysis will frequently “entail some overlap with the merits of the plaintiff’s underlying claim” meaning that before the litigation is even fully underway, plaintiffs must, effectively, establish portions of their claims. Though the underlying facts of the Wal-Mart v. Dukes case are abhorrent, the law produced in the case is problematic as well.