Loading
Retail
9 min read
Areas of Expertise :
Retail, Employment, Discrimination, Human Resources, Statistics
Published Date:
Last Modified Date:
Jurisdiction:
Federal. Ninth Circuit
Court:
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), involved a nationwide employment discrimination class action brought under Title VII of the Civil Rights Act of 1964. The plaintiffs sought to represent approximately 1.5 million current and former female Wal-Mart employees who alleged sex discrimination in pay and promotion decisions. Their claims focused largely on Wal-Mart's practice of giving local managers broad discretion over compensation and advancement decisions and whether those decentralized decisions could be tied to a common discriminatory practice.
The case reached the U.S. Supreme Court after the U.S. District Court for the Northern District of California certified a nationwide class and the Ninth Circuit substantially affirmed that ruling. The Supreme Court did not decide whether Wal-Mart had discriminated against particular employees. Instead, it examined whether the proposed nationwide class satisfied the commonality requirement of Federal Rule of Civil Procedure 23(a)(2) and whether claims for backpay could be certified under Rule 23(b)(2).
The certified class that reached the Supreme Court was represented by Betty Dukes, Christine Kwapnoski, and Edith Arana, although the complaint originally included seven named plaintiffs. Dukes began working at a Wal-Mart store in Pittsburg, California, in 1994 and alleged unequal pay and discriminatory disciplinary treatment. Kwapnoski worked at Sam's Club locations in Missouri and California and alleged discriminatory workplace treatment. Arana worked at a Wal-Mart store in Duarte, California, from 1995 to 2001 and alleged that she was denied opportunities for management training because of her sex. Their individual allegations later formed part of the broader challenge to Wal-Mart's pay and promotion practices.
Betty Dukes filed an individual pro se complaint in the U.S. District Court for the Northern District of California on June 8, 2001. An amended complaint asserting class claims was filed on June 19, 2001. The plaintiffs later sought certification of a class consisting of women employed at Wal-Mart's domestic retail stores at any time since December 26, 1998 who had been or could be subjected to the challenged pay and management-track promotion practices. They requested declaratory and injunctive relief, backpay, and punitive damages, but not compensatory damages.
The district court granted in part and denied in part the plaintiffs' motion for class certification. It certified nationwide discrimination claims while excluding certain backpay claims involving promotion opportunities that had not been publicly posted because applicant data would not have existed for those positions.
At the certification stage, the plaintiffs relied on several forms of evidence. Their presentation included statistical analyses of pay and promotion outcomes, anecdotal accounts from approximately 120 female employees, and testimony from sociologist Dr. William Bielby. Bielby used a social-framework analysis to examine Wal-Mart's culture and personnel practices and concluded that aspects of the company's employment structure made it vulnerable to gender bias.
After earlier appellate proceedings, the Ninth Circuit, sitting en banc, substantially affirmed the district court's certification order on April 26, 2010. The court upheld certification under Rule 23(b)(2) for women who were Wal-Mart employees when the complaint was filed and who sought injunctive and declaratory relief together with backpay.
The Ninth Circuit remanded the punitive-damages issue for further consideration and directed the district court to consider whether former employees who were no longer working for Wal-Mart when the complaint was filed could proceed through a separate Rule 23(b)(3) class. At that stage of the litigation, the court found the plaintiffs' statistical, anecdotal, and sociological evidence sufficient to support common questions concerning Wal-Mart's employment practices.
The Supreme Court granted Wal-Mart's petition for certiorari on December 6, 2010. The Court agreed to review whether certification of the nationwide class complied with Rule 23, including the commonality requirement under Rule 23(a)(2), and whether the requested backpay could be pursued under Rule 23(b)(2).
The dispute required the Court to examine whether employment decisions made by thousands of managers at different locations could be connected through a common employment practice. Wal-Mart argued that the decisions were decentralized and depended on the circumstances surrounding individual employees and managers.
The Supreme Court heard oral argument on March 29, 2011. The parties disputed whether the discretion exercised by managers throughout Wal-Mart could provide a common basis for resolving the class members' claims.
The justices also examined the proposed treatment of backpay. A central concern was whether individualized monetary claims could be resolved within a Rule 23(b)(2) class while still allowing Wal-Mart to challenge the circumstances of particular employment decisions and raise statutory defenses.
On June 20, 2011, the Supreme Court reversed the Ninth Circuit. In the 5–4 portion of Justice Antonin Scalia's opinion addressing Rule 23(a), the Court held that the plaintiffs had not established the commonality required by Rule 23(a)(2). The proposed class challenged millions of separate pay and promotion decisions, and the evidence did not establish a companywide discriminatory practice capable of generating a common answer to the claims of the entire class.
The Court also considered Dr. Bielby's social-framework testimony. Bielby concluded that Wal-Mart's culture and personnel practices could make employment decisions susceptible to gender stereotypes, but he could not determine what percentage of those decisions were actually affected by stereotypical thinking. For the Court, that limitation prevented his analysis from providing the significant proof necessary to connect decentralized employment decisions through a common discriminatory mode.
In a separate unanimous portion of the decision, the Court ruled that the backpay claims had been improperly certified under Rule 23(b)(2). Wal-Mart was entitled to litigate statutory defenses concerning individual employees rather than have liability determined through a representative sample of claims and extrapolated to the remainder of the class. The ruling ended the nationwide class in its certified form without deciding whether Wal-Mart had violated Title VII as to any particular employee.
United States District Court for the Northern District of California
Case Name:
Dukes et al. v. Wal-Mart Stores, Inc.
Employment Discrimination
Gender Discrimination
Class Certification
Labor Economics
Labor and Employment
Equal Employment Opportunity
Compensation Plans
Promotions
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), involved a nationwide employment discrimination class action brought under Title VII of the Civil Rights Act of 1964. The plaintiffs sought to represent approximately 1.5 million current and former female Wal-Mart employees who alleged sex discrimination in pay and promotion decisions. Their claims focused largely on Wal-Mart's practice of giving local managers broad discretion over compensation and advancement decisions and whether those decentralized decisions could be tied to a common discriminatory practice.
The case reached the U.S. Supreme Court after the U.S. District Court for the Northern District of California certified a nationwide class and the Ninth Circuit substantially affirmed that ruling. The Supreme Court did not decide whether Wal-Mart had discriminated against particular employees. Instead, it examined whether the proposed nationwide class satisfied the commonality requirement of Federal Rule of Civil Procedure 23(a)(2) and whether claims for backpay could be certified under Rule 23(b)(2).
The certified class that reached the Supreme Court was represented by Betty Dukes, Christine Kwapnoski, and Edith Arana, although the complaint originally included seven named plaintiffs. Dukes began working at a Wal-Mart store in Pittsburg, California, in 1994 and alleged unequal pay and discriminatory disciplinary treatment. Kwapnoski worked at Sam's Club locations in Missouri and California and alleged discriminatory workplace treatment. Arana worked at a Wal-Mart store in Duarte, California, from 1995 to 2001 and alleged that she was denied opportunities for management training because of her sex. Their individual allegations later formed part of the broader challenge to Wal-Mart's pay and promotion practices.
Betty Dukes filed an individual pro se complaint in the U.S. District Court for the Northern District of California on June 8, 2001. An amended complaint asserting class claims was filed on June 19, 2001. The plaintiffs later sought certification of a class consisting of women employed at Wal-Mart's domestic retail stores at any time since December 26, 1998 who had been or could be subjected to the challenged pay and management-track promotion practices. They requested declaratory and injunctive relief, backpay, and punitive damages, but not compensatory damages.
The district court granted in part and denied in part the plaintiffs' motion for class certification. It certified nationwide discrimination claims while excluding certain backpay claims involving promotion opportunities that had not been publicly posted because applicant data would not have existed for those positions.
At the certification stage, the plaintiffs relied on several forms of evidence. Their presentation included statistical analyses of pay and promotion outcomes, anecdotal accounts from approximately 120 female employees, and testimony from sociologist Dr. William Bielby. Bielby used a social-framework analysis to examine Wal-Mart's culture and personnel practices and concluded that aspects of the company's employment structure made it vulnerable to gender bias.
After earlier appellate proceedings, the Ninth Circuit, sitting en banc, substantially affirmed the district court's certification order on April 26, 2010. The court upheld certification under Rule 23(b)(2) for women who were Wal-Mart employees when the complaint was filed and who sought injunctive and declaratory relief together with backpay.
The Ninth Circuit remanded the punitive-damages issue for further consideration and directed the district court to consider whether former employees who were no longer working for Wal-Mart when the complaint was filed could proceed through a separate Rule 23(b)(3) class. At that stage of the litigation, the court found the plaintiffs' statistical, anecdotal, and sociological evidence sufficient to support common questions concerning Wal-Mart's employment practices.
The Supreme Court granted Wal-Mart's petition for certiorari on December 6, 2010. The Court agreed to review whether certification of the nationwide class complied with Rule 23, including the commonality requirement under Rule 23(a)(2), and whether the requested backpay could be pursued under Rule 23(b)(2).
The dispute required the Court to examine whether employment decisions made by thousands of managers at different locations could be connected through a common employment practice. Wal-Mart argued that the decisions were decentralized and depended on the circumstances surrounding individual employees and managers.
The Supreme Court heard oral argument on March 29, 2011. The parties disputed whether the discretion exercised by managers throughout Wal-Mart could provide a common basis for resolving the class members' claims.
The justices also examined the proposed treatment of backpay. A central concern was whether individualized monetary claims could be resolved within a Rule 23(b)(2) class while still allowing Wal-Mart to challenge the circumstances of particular employment decisions and raise statutory defenses.
On June 20, 2011, the Supreme Court reversed the Ninth Circuit. In the 5–4 portion of Justice Antonin Scalia's opinion addressing Rule 23(a), the Court held that the plaintiffs had not established the commonality required by Rule 23(a)(2). The proposed class challenged millions of separate pay and promotion decisions, and the evidence did not establish a companywide discriminatory practice capable of generating a common answer to the claims of the entire class.
The Court also considered Dr. Bielby's social-framework testimony. Bielby concluded that Wal-Mart's culture and personnel practices could make employment decisions susceptible to gender stereotypes, but he could not determine what percentage of those decisions were actually affected by stereotypical thinking. For the Court, that limitation prevented his analysis from providing the significant proof necessary to connect decentralized employment decisions through a common discriminatory mode.
In a separate unanimous portion of the decision, the Court ruled that the backpay claims had been improperly certified under Rule 23(b)(2). Wal-Mart was entitled to litigate statutory defenses concerning individual employees rather than have liability determined through a representative sample of claims and extrapolated to the remainder of the class. The ruling ended the nationwide class in its certified form without deciding whether Wal-Mart had violated Title VII as to any particular employee.
Sociology Expert Witness – Dr. William Bielby, Plaintiffs
Dr. William Bielby conducted a social-framework analysis of Wal-Mart's corporate culture and personnel practices for the plaintiffs. He examined whether features of the company's management system could make employment decisions susceptible to gender stereotypes.
His testimony became a significant part of the commonality dispute before the Supreme Court. Although Bielby identified conditions that he believed could permit gender bias to influence managerial decisions, his analysis did not determine how frequently stereotypical thinking actually affected pay or promotion decisions across Wal-Mart.
Statistics Expert Witness – Dr. Richard Drogin, Plaintiffs
Dr. Richard Drogin analyzed Wal-Mart's employment data for the plaintiffs, including statistical patterns involving compensation and promotion outcomes. His work used aggregated data and examined disparities at organizational and regional levels.
The district court relied on his analysis when evaluating whether the plaintiffs had produced evidence supporting common questions at the certification stage. The Ninth Circuit later concluded that the district court had not abused its discretion in considering his statistical work.
Labor Economist – Dr. Marc Bendick, Plaintiffs
Dr. Marc Bendick conducted a benchmarking analysis comparing Wal-Mart's workforce with data from other large general-merchandise retailers. He examined the representation of women in management positions and considered whether differences between Wal-Mart and comparable retailers could shed light on promotion opportunities.
His analysis formed part of the plaintiffs' broader evidentiary presentation concerning advancement patterns and the representation of women in management.
Statistical Expert Witness – Dr. Joan Haworth, Wal-Mart
Dr. Joan Haworth served as a statistical expert for Wal-Mart and challenged aspects of the plaintiffs' statistical evidence. Her work included analyses using more localized employment data as well as a survey of store managers.
The district court excluded the store-manager survey after identifying methodological problems with it. The Ninth Circuit later noted that Wal-Mart did not appeal that particular evidentiary ruling.
Rule 23(a)(2) Commonality
Rule 23(a)(2) requires that class members share common questions of law or fact, and the Supreme Court in Dukes emphasized that simply having similar questions is not enough. Instead, the claims must rely on a common issue that can be resolved with a single answer for the entire class. The Court found that Wal-Mart’s decentralized decision-making by many managers was not tied together by a specific companywide discriminatory policy. As a result, the plaintiffs could not show a common method of discrimination affecting all class members.
Managerial Discretion Over Pay and Promotions
Wal-Mart allowed local managers broad discretion in pay and promotion decisions within general company guidelines. The plaintiffs argued this discretion enabled gender bias and contributed to systemic discrimination. The Supreme Court did not rule that discretionary systems can never support class actions under Title VII. However, it held that the plaintiffs failed to show that all managers acted under a shared discriminatory pattern.
Backpay Claims Under Rule 23(b)(2)
Rule 23(b)(2) allows class actions when a single injunction can provide relief for the entire class. In Dukes, the Court found that backpay claims required individualized assessments of each employee’s situation. Because Wal-Mart had the right to challenge each claim separately, the Court ruled that backpay could not be handled through a classwide proceeding under Rule 23(b)(2).
Statistical, Anecdotal, and Sociological Evidence
The plaintiffs used statistical data, employee accounts, and expert sociological analysis to show companywide discrimination. Each type of evidence aimed to support the claim that Wal-Mart’s structure allowed bias to influence decisions. However, the Supreme Court concluded that this evidence did not establish a unified explanation for all employment decisions. It was therefore insufficient to prove the required commonality for class certification.
The litigation moved from nationwide class certification in the Northern District of California through substantial affirmance by the Ninth Circuit before the Supreme Court reconsidered whether the claims could proceed together under Rule 23. On June 20, 2011, the Court reversed certification because the plaintiffs had not shown a common discriminatory policy or method capable of resolving the pay and promotion claims of approximately 1.5 million women on a classwide basis.
The Court separately and unanimously rejected certification of the individualized backpay claims under Rule 23(b)(2), finding that Wal-Mart had a right to contest individual employees' entitlement to monetary relief and present statutory defenses. The ruling dismantled the nationwide class approved by the lower courts while leaving unresolved whether particular female employees had experienced unlawful discrimination under Title VII.
What was Wal-Mart v. Dukes about?
Wal-Mart v. Dukes involved allegations that female Wal-Mart employees experienced sex discrimination in compensation and promotions in violation of Title VII. When the case reached the Supreme Court, the principal issue was whether approximately 1.5 million current and former female employees could pursue those allegations together as a nationwide class under Rule 23.
What does “commonality” mean after Wal-Mart v. Dukes?
Under Dukes, commonality requires more than identifying questions that apply generally to members of a proposed class. The class claims must depend on a common contention whose resolution can answer an issue central to each member's claim at the same time.
What role did Dr. William Bielby play in Wal-Mart v. Dukes?
Dr. William Bielby served as a sociology expert for the plaintiffs and conducted a social-framework analysis of Wal-Mart's culture and personnel practices. His work addressed whether the company's employment structure could make managerial decisions vulnerable to gender stereotypes, but the Supreme Court found that his analysis did not establish how often such stereotypes actually influenced employment decisions.
Did Wal-Mart v. Dukes prohibit class actions involving managerial discretion?
No. The Supreme Court did not hold that discretionary employment practices can never support a class claim. It recognized that managerial discretion may form the basis of a disparate-impact claim in appropriate circumstances, but the plaintiffs in Dukes did not produce sufficient proof that managers throughout Wal-Mart exercised their discretion according to a common discriminatory mode.
Did the Supreme Court decide whether Wal-Mart discriminated against female employees?
No. The Supreme Court addressed whether the proposed nationwide class satisfied Rule 23 and whether the requested backpay could proceed under Rule 23(b)(2). The decision did not determine whether Wal-Mart violated Title VII in its treatment of any particular employee.
Sociology Expert Witness – Dr. William Bielby, Plaintiffs
Dr. William Bielby conducted a social-framework analysis of Wal-Mart's corporate culture and personnel practices for the plaintiffs. He examined whether features of the company's management system could make employment decisions susceptible to gender stereotypes.
His testimony became a significant part of the commonality dispute before the Supreme Court. Although Bielby identified conditions that he believed could permit gender bias to influence managerial decisions, his analysis did not determine how frequently stereotypical thinking actually affected pay or promotion decisions across Wal-Mart.
Statistics Expert Witness – Dr. Richard Drogin, Plaintiffs
Dr. Richard Drogin analyzed Wal-Mart's employment data for the plaintiffs, including statistical patterns involving compensation and promotion outcomes. His work used aggregated data and examined disparities at organizational and regional levels.
The district court relied on his analysis when evaluating whether the plaintiffs had produced evidence supporting common questions at the certification stage. The Ninth Circuit later concluded that the district court had not abused its discretion in considering his statistical work.
Labor Economist – Dr. Marc Bendick, Plaintiffs
Dr. Marc Bendick conducted a benchmarking analysis comparing Wal-Mart's workforce with data from other large general-merchandise retailers. He examined the representation of women in management positions and considered whether differences between Wal-Mart and comparable retailers could shed light on promotion opportunities.
His analysis formed part of the plaintiffs' broader evidentiary presentation concerning advancement patterns and the representation of women in management.
Statistical Expert Witness – Dr. Joan Haworth, Wal-Mart
Dr. Joan Haworth served as a statistical expert for Wal-Mart and challenged aspects of the plaintiffs' statistical evidence. Her work included analyses using more localized employment data as well as a survey of store managers.
The district court excluded the store-manager survey after identifying methodological problems with it. The Ninth Circuit later noted that Wal-Mart did not appeal that particular evidentiary ruling.
Rule 23(a)(2) Commonality
Rule 23(a)(2) requires that class members share common questions of law or fact, and the Supreme Court in Dukes emphasized that simply having similar questions is not enough. Instead, the claims must rely on a common issue that can be resolved with a single answer for the entire class. The Court found that Wal-Mart’s decentralized decision-making by many managers was not tied together by a specific companywide discriminatory policy. As a result, the plaintiffs could not show a common method of discrimination affecting all class members.
Managerial Discretion Over Pay and Promotions
Wal-Mart allowed local managers broad discretion in pay and promotion decisions within general company guidelines. The plaintiffs argued this discretion enabled gender bias and contributed to systemic discrimination. The Supreme Court did not rule that discretionary systems can never support class actions under Title VII. However, it held that the plaintiffs failed to show that all managers acted under a shared discriminatory pattern.
Backpay Claims Under Rule 23(b)(2)
Rule 23(b)(2) allows class actions when a single injunction can provide relief for the entire class. In Dukes, the Court found that backpay claims required individualized assessments of each employee’s situation. Because Wal-Mart had the right to challenge each claim separately, the Court ruled that backpay could not be handled through a classwide proceeding under Rule 23(b)(2).
Statistical, Anecdotal, and Sociological Evidence
The plaintiffs used statistical data, employee accounts, and expert sociological analysis to show companywide discrimination. Each type of evidence aimed to support the claim that Wal-Mart’s structure allowed bias to influence decisions. However, the Supreme Court concluded that this evidence did not establish a unified explanation for all employment decisions. It was therefore insufficient to prove the required commonality for class certification.
The litigation moved from nationwide class certification in the Northern District of California through substantial affirmance by the Ninth Circuit before the Supreme Court reconsidered whether the claims could proceed together under Rule 23. On June 20, 2011, the Court reversed certification because the plaintiffs had not shown a common discriminatory policy or method capable of resolving the pay and promotion claims of approximately 1.5 million women on a classwide basis.
The Court separately and unanimously rejected certification of the individualized backpay claims under Rule 23(b)(2), finding that Wal-Mart had a right to contest individual employees' entitlement to monetary relief and present statutory defenses. The ruling dismantled the nationwide class approved by the lower courts while leaving unresolved whether particular female employees had experienced unlawful discrimination under Title VII.
What was Wal-Mart v. Dukes about?
Wal-Mart v. Dukes involved allegations that female Wal-Mart employees experienced sex discrimination in compensation and promotions in violation of Title VII. When the case reached the Supreme Court, the principal issue was whether approximately 1.5 million current and former female employees could pursue those allegations together as a nationwide class under Rule 23.
What does “commonality” mean after Wal-Mart v. Dukes?
Under Dukes, commonality requires more than identifying questions that apply generally to members of a proposed class. The class claims must depend on a common contention whose resolution can answer an issue central to each member's claim at the same time.
What role did Dr. William Bielby play in Wal-Mart v. Dukes?
Dr. William Bielby served as a sociology expert for the plaintiffs and conducted a social-framework analysis of Wal-Mart's culture and personnel practices. His work addressed whether the company's employment structure could make managerial decisions vulnerable to gender stereotypes, but the Supreme Court found that his analysis did not establish how often such stereotypes actually influenced employment decisions.
Did Wal-Mart v. Dukes prohibit class actions involving managerial discretion?
No. The Supreme Court did not hold that discretionary employment practices can never support a class claim. It recognized that managerial discretion may form the basis of a disparate-impact claim in appropriate circumstances, but the plaintiffs in Dukes did not produce sufficient proof that managers throughout Wal-Mart exercised their discretion according to a common discriminatory mode.
Did the Supreme Court decide whether Wal-Mart discriminated against female employees?
No. The Supreme Court addressed whether the proposed nationwide class satisfied Rule 23 and whether the requested backpay could proceed under Rule 23(b)(2). The decision did not determine whether Wal-Mart violated Title VII in its treatment of any particular employee.
Employment Discrimination
Gender Discrimination
Class Certification
Labor Economics
Labor and Employment
Equal Employment Opportunity
Compensation Plans
Promotions
Elevator & Escalator, +4
Retail
Product Liability, +4
Retail