Ok, You Asked For It: A Bit More About Wal-Mart v Dukes
I have been asked why I am so fearful that the Supreme Court’s decision in Wal-Mart v. Dukes foreshadows the demise of systemic theories challenging patterns or practices of discrimination. After all, the case is about class actions. My fear is that, has it done in other areas, the lower courts and the Supreme Court itself will look back and declare that systemic antidiscriminaiton law is as it was described in Wal-Mart. My fear is based on articles by Barry Friedman in the Georgetown Law Review, The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1647745, and Margaret Moses’ article, Beyond Judicial Activism: When the Supreme Court is No Longer a Court, 14 U. Penn. J. of Const. L. 161, http://papers.ssrn.com/sol3/papers.cfm?abstract _1781243. Friedman analyzes recoent decisions by the Robert Court that do not expressly overrule precedent but interpet so that nothing but hollow shells are left. Moses shows how the Robert Court reaches out to decide issues to impose the majority’s public policy predilections, thereby underminng precedent, even where the parties did not bring those issues to the Court or where those issues were never decided by lower courts or sometimes even briefed by the parties.
Wal-Mart itself is an exmple of the Court looking back to precedent but in doing so radically distorting it. General Telephone Co. v. Falcon was an earlier class action case in which the Court rejected the “across the board” theory of class actions. The “across the board” theory had approved class actions where a plaintiff, claiming one type of discrimination, could being a class action challenging every kind of discrimination of the employer. Falcon claimed he was a victim of defendant’s hiring discrimination but he tried to bring a class action challenging the employer’s promotion discrimination. After deciding such “across the board” class actions could not generally be brought under Rule 23, the Falcon Court, in a footnote, described two exceptions where a plaintiff could still bring a class action claiming more than one type of discrimination: 1. If the employer used a common test in more than one context, for example if in Falcon General Telephone used the same employment test for both hiring and promotion decisions and 2. if the employer had a “general policy” of discrimination.
The plaintiffs in Wal-Mart did not try to bring an “across the board” class action challenging all the ways that Wal-Mart discriminated. Instead, their action focused on Wal-Mart’s discriminatory pay and promotion practices at its stores. Since the level of pay was significantly influenced by whether an employee had been promoted or not, pay and promotion were closely interwined, unlike the hiring and promotion claims in Falcon. Falcon was inapposite Wal-Mart, yet the Court relied on it to reject plaintiffs class action. The Court turned the two exceptions from Falcon which would allow a plaintiff to bring a class action that reached more than one type of employer discriminaiton into a limit on the scope of class actions involving a single type of discriminatioin. Thus, it now appears that class actions challenging a single type of employer discrimination will be denied unless the employer uses either an employment test or has a general policy of discrimination. Since the Wal-Mart majority was unable to conceptualize the operation of Wal-Mart’s policy granting unchecked discretion to store managers on pay and promotions as a pattern or practice of discriminaiton, my fear is that lower courts and the Supreme Court itself will decide that systemic disparate treatment claims are limited to situations challenging the employer’s use of an employment test or where the employer has a formal, i.e., general, policy of discrimination. That would mean that Teamsters, Hazelwood and Bazemore, which interpreted Title VII to prohibit systemic patterns or practices of discriminaiton, are victim of stealth overruling.
Because the Wal-Mart majority hollowed out class action precedent to truncate class actions, that misuse of precedent forewhadows the use of the language in Wal-Mart to truncate the substance of the systemic theories of discrimination.