The Supreme Court has handed down its ruling in Wal-Mart v. Dukes, a case I’ve discussed earlier. The Court unanimously held that the suit should not proceed. There are, however, major differences in the reasoning that matter going forward.
Every member of the Court agreed that the class could not be certified under rule 23 (b)(2) of the Federal Rules of Civil Procedure, which require that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” The Court held that the class was too diverse to qualify under this standard. Where the Court broke along familiar ideological lines, however, is one the question of whether the Wal-Mart employees might qualify as a class under rule 23 (b)(3), which permits suits to go forward if “the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” The Court’s five Republican appointees rejected this claim out of hand. Ginsburg’s dissent argues that because the question was not before the Court, whether the suit could qualify under 23 (b)(3) should be sent back to the lower courts. As Ginsburg notes, there is good reason to believe that in this suit “questions of law or fact common to class members” would “predominate over any questions affecting only individual members”:
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.”
The District Court identified “systems for . . . promoting in-store employees” that were “sufficiently similar across regions and stores” to conclude that “the manner in which these systems affect the class raises issues that are com-mon to all class members.” The selection of employees for promotion to in-store management “is fairly characterized as a ‘tap on the shoulder’ process,” in which managers have discretion about whose shoulders to tap. Vacancies are not regularly posted; from among those employees satisfying minimum qualifications, managers choose whom to promote on the basis of their own subjective impressions.
Systematic discrimination at a large corporation such as Wal-Mart simply cannot be addressed piecemeal. I could have lived with a ruling that focused on the unique facts of this case. But in their broad ruling, the Court’s five most conservative justices have made it much more difficult for civil rights laws to be meaningfully enforced in practice. It will be part of the classic conservertarian bait-and-switch: individuals filing lawsuits will not have enough evidence to prove discrimination, and class action suits that develop systematic evidence will be thrown out for not having enough in common.
[X-Posted to TAPPED.]