SCOTUS, Walmart and Discrimination
What happened? 1.5 million current and former female Wal-Mart employees alleged Wal-Mart discriminated against them in violation of Title VII of the Civil Rights Act of 1964. They said that local managers disproportionately exercised their discretion over pay and promotions in favor of men, which was unlawful. The employees were seeking a favorable judgment that would give backpay, injunctive relief (stop Wal-Mart from physically discriminating against women), & punitive damages (punish Wal-Mart financially for disobeying the law).
What was the issue before the Supreme Court? In order for a “class” in a class action to be certified, the Federal Rules of Civil Procedure require: (i) numerosity, (ii) commonality, (iii) typicality, & (iv) adequate representation. Once Rule 23(a) is satisfied, the class then must then satisfy Rule 23(b). Specifically, the issue was whether the Wal-Mart employees met the requirements of the Rule 23(a)(2) commonality requirement and Rule 23 (b)(2).
What happened before it arrived to the Supreme Court?: The District Court certified the class and found that the employees satisfied the class action requirements. The 9th Circuit Court of Appeals “substantially affirmed” and said that the employees met the 23(a)(2) commonality requirement and that their backpay claims could be certified as part of a (b)(2) class because those claims didn’t predominate over the declaratory and injunctive relief requests.
What was the outcome? Not in favor of the employees. The Court said that the employees’ certification was not consistent with Rule 23(a) and should not have been certified The Court also said that the employees’ backpay claims were also improperly certified under Rule 23(b)(2).
Scalia wrote the opinion for the court and noted that a “Title VII discrimination suit requires ‘the reason for a particular employment decision.’ Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876 (1984) and the employees [wanted] to sue for millions of employment decisions at once. Without some glue holding together the alleged reasons for those decisions, it will be impossible to say that examination of all the class members claims will produce a common answer to the crucial discrimination question.”
Justice Ruth Bader Ginsburg’s Concurrence/Dissent: She agreed with the majority in Parts I & III of the opinion (the class should not have been certified under Rule 23(b)(2)). However, she disagreed with Part II of the Court’s opinion because the majority imported into Rule 23(a) concerns that are addressed in Rule 23(b)(3). Justice Ginsburg wrote “23(a) does not require that all questions of law or fact raised in the litigation be common, indeed even a single question of law or fact common to the members of the class will satisfy the commonality requirement.” Justice Breyer, Justice Sotomayor, and Justice Kagan agreed.
How far will this opinion reach? This opinion could have some real consequences on class actions in the future. I would agree with Justice Ginsburg that the class did meet the commonality requirement. Scalia cited General Telephone Co. of Southwest v. Falcon , 457 U.S. 147, 157-158 (1982) and said “commonality requires the plaintiff to demonstrate that the class members have suffered the same injury.” Well, if he didn’t think a group of 1.5 million women who all alleged they were discriminated against simply because of their sex suffered the same injury, what will happen when defective products (that are not part of Multi-District Litigation) injure individuals in different ways (i.e. some lose an arm, while others lose their life). Will this not be properly satisfy the Rule 23(a) commonality requirement according to the majority? Time will only tell.