Walmart v. Dukes

In Wal-Mart v. Dukes, the Supreme Court prevented more than a million women from banding together to pursue their case against the discriminatory pay and promotion practices of Wal-Mart management.

The 5-4 majority rewrote the federal rule governing class actions by setting a higher threshold for plaintiffs to show the “commonality” of their claims. The majority also created new hurdles for disparate impact cases, where subjective personnel decisions have led to widespread gender or racial disparities in the workforce, by holding that “proving a … disparity is not enough,” and rejecting plaintiffs’ overwhelming statistical evidence of widespread discrimination.

The majority also elevated the company’s written non-discrimination policy to exalted status – despite a complete lack of evidence that it was followed – and assumed that “most managers in any corporation … would select sex-neutral, performance-based criteria for hiring and promotion.” The 120 affidavits from women being called “Janie Qs’” at executive meetings, being paid less than a just-hired 17-year-old boy because “you aren’t male, so you can’t expect to be paid the same,” or told to “doll up” and “blow the cobwebs off” make-up were dismissed as “prov[ing] nothing at all.”

The consequences for employment discrimination class actions, as well as class actions more generally, are potentially far-reaching.

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