Today the Supreme Court will hear argument in Wal-Mart Stores v. Dukes, potentially the largest employment class action case in U.S. history. The plaintiffs allege that Wal-Mart paid male employees more and promoted them over women with more seniority and that it maintained a culture of gender stereotyping where women were called “Janie Q’s,” told to wear make-up and “doll-up,” and meetings were held at Hooters. They also rely on statistical data to establish discrimination. They claim that women comprise 80% of hourly supervisors, but only one-third of store managers. The percentage of women in higher positions is even lower.
Unfortunately, we won’t learn for a while whether Wal-Mart actually discriminated against its female employees. The issue before the Court is one that civil procedure, specifically class action, junkies should find titillating—whether the six plaintiffs should have been certified to bring a class-action that could potentially include 1.5 million employees in thousands of stores across the country. Wal-Mart claims that there is no commonality among the plaintiffs’ claims and that the “named plaintiffs’ claims cannot conceivably be typical of the claims of the strangers they seek to represent.” If the term “class-action certification” is making you yawn, you might be missing the potential impact of this issue for employment discrimination plaintiffs going forward. If the Supreme Court adopts the view of the dissenters in the Ninth Circuit opinion and requires plaintiffs seeking class certification to show “significant proof that an employer operated under a general policy of discrimination,” plaintiffs (including the EEOC) are also likely to find it much more difficult to prove that the entity should be held liable when the case is heard on its merits. I didn’t understand these implications until I read Professor Tristin Green’s article exposing the impact of Dukes for the future of systemic disparate treatment law. She also argues that the current individualistic model of disparate treatment (one bad actor or as one Wal-Mart executive put it, “some bosses may have gone astray”) has made it difficult for scholars to think critically about entity responsibility for systemic disparate treatment in the workplace. You can read the abstract and article here.