Dissent in Wal-Mart Stores, Inc. v. Dukes
564 U.S. 338 (2011) (2011) · Supreme Court of the United States
Wal-Mart v. Dukes tightened the requirements for class certification under Rule 23, particularly the commonality requirement of Rule 23(a)(2). The Court held that commonality requires not just common questions but common answers — that the class claims must depend upon a common contention capable of classwide resolution. The decision significantly raised the bar for employment discrimination class actions and large-scale class litigation.
What was the dissent in Wal-Mart Stores, Inc. v. Dukes?
Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor, and Kagan, arguing that the majority set too high a bar for commonality. She contended that the delegation of excessive subjective discretion, combined with evidence of a corporate culture of gender bias and statistically significant pay disparities, raised a common question suitable for class treatment. She also disagreed with the majority's holding on Rule 23(b)(2), arguing that back pay is a form of equitable relief appropriate for (b)(2) certification.
Source: Read Wal-Mart Stores, Inc. v. Dukes on Google Scholar
Case Overview
Facts
Three current and former female Wal-Mart employees filed a class action on behalf of approximately 1.5 million women who worked at Wal-Mart stores nationwide, alleging that the company discriminated against women in pay and promotion decisions in violation of Title VII. The plaintiffs claimed that Wal-Mart's policy of giving local managers broad discretion in pay and promotion decisions had a disparate impact on women and reflected a corporate culture of gender bias. They sought certification of a class under Rule 23(b)(2) for injunctive and declaratory relief and back pay.
Majority Holding
The Supreme Court held that the plaintiffs failed to establish commonality under Rule 23(a)(2). Commonality requires that class members' claims depend upon a common contention that is capable of classwide resolution, meaning that determination of its truth or falsity will resolve an issue that is central to the validity of each claim in one stroke. The mere allegation of discretionary decision-making by thousands of individual managers was insufficient to demonstrate a common policy of discrimination. The Court also held that individualized monetary claims for back pay could not be certified under Rule 23(b)(2).
Majority Reasoning
Justice Scalia's majority opinion held that Rule 23(a)(2) requires more than just raising common questions; it requires that the answers to those questions drive the resolution of the litigation. The plaintiffs' theory — that Wal-Mart's delegation of discretion to local managers permitted gender bias — was too diffuse to establish commonality. With 1.5 million class members across thousands of stores, the individual employment decisions were made by different managers with different criteria. The plaintiffs' statistical and anecdotal evidence did not demonstrate that a common mode of exercising discretion pervaded the entire company. The Court also held that Rule 23(b)(2), which allows certification when injunctive or declaratory relief is appropriate for the class as a whole, does not authorize certification when individualized monetary claims predominate.
The Dissenting Opinion
Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor, and Kagan, arguing that the majority set too high a bar for commonality. She contended that the delegation of excessive subjective discretion, combined with evidence of a corporate culture of gender bias and statistically significant pay disparities, raised a common question suitable for class treatment. She also disagreed with the majority's holding on Rule 23(b)(2), arguing that back pay is a form of equitable relief appropriate for (b)(2) certification.
Key Quotes
“Commonality requires the plaintiff to demonstrate that the class members 'have suffered the same injury.' This does not mean merely that they have all suffered a violation of the same provision of law.”
“What matters to class certification is not the raising of common 'questions' — even in droves — but, rather the capacity of a classwide proceeding to generate common 'answers' apt to drive the resolution of the litigation.”
“Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members' claims for relief will produce a common answer to the crucial question why was I disfavored.”
Impact and Legacy
Wal-Mart v. Dukes significantly raised the bar for class certification, particularly in employment discrimination cases involving discretionary decision-making across large organizations. The case made it harder to certify nationwide classes by requiring a tighter showing of commonality. It also limited the use of Rule 23(b)(2) for monetary relief, channeling such claims into Rule 23(b)(3) where notice and opt-out rights must be provided. The decision has had a lasting impact on class action strategy and the viability of large-scale employment discrimination class actions.
Exam Relevance
Wal-Mart is heavily tested in class action and Rule 23 questions. Students must understand the heightened commonality standard — common answers, not just common questions — and be able to apply it to fact patterns involving discretionary decision-making. Exam questions may also test the distinction between Rule 23(b)(2) and Rule 23(b)(3) certification and when monetary claims can be pursued under each.
Study Tips
- Master the 'common answers' formulation: commonality requires not just common questions but answers that will resolve a central issue for the entire class in one stroke.
- Understand why delegation of discretion to individual managers was insufficient for commonality — it is the antithesis of a uniform policy.
- Know the Rule 23(b)(2) versus (b)(3) distinction: (b)(2) is for indivisible injunctive or declaratory relief; (b)(3) is required when individualized damages predominate.
- Be prepared to discuss the policy implications: does Wal-Mart make it too difficult to challenge systemic discrimination?
Read the Full Case Analysis
View the complete brief for Wal-Mart Stores, Inc. v. Dukes including full reasoning, doctrine, and study resources.
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