Wal-Mart discrimination case cannot really be a class action

Dukes v. Wal-Mart, a case claiming job discrimination against at least 1.5 million women, reached the U.S. Supreme Court last week after the 9th Circuit Court of Appeals in San Francisco agreed, in a 6-5 vote, to permit the case to go forward as a single class action.  

The media is portraying this as a dispute over how “large” a class action can be, but that is incorrect. There is nothing inherently wrong with a large class action. A class action is simply a procedural device meant to aggregate similar claims for purposes of efficiency.

One can even imagine an appropriate employment class action as large as Dukes. For example, if Wal-Mart had a nationwide policy that it would always pay women 20 percent less than men doing the same job, women would be equally affected by that policy and it would be a simple matter to try the case.

But the theory of the Dukes lawsuit is exactly the opposite — the plaintiffs claimed that Wal-Mart’s central office did not exercise enough authority over each of its 3,400 stores; each of the individual managers’ discretionary employment or promotion decisions, whether made by male or female managers, was on average discriminatory; and thus Wal-Mart was responsible for a policy that “fosters or facilitates” discrimination.

Wal-Mart says women have fewer management jobs because fewer women apply. Only an illegal quota would block such a legal theory if courts let it go forward.

One can quickly see why this does not work as a class action. In the words of professor Richard Epstein, the procedural tail is wagging the substantive dog. Discrimination laws permit Wal-Mart to defend itself by demonstrating that the challenged job decision was made for a reason other than sex.

For example, looking at named plaintiff Betty Dukes alone, we learn that she had a female manager and she was repeatedly disciplined for returning late from lunch breaks. Yet if a court ties together claims that are not alike, it will have trouble trying the case as a single class action — unless it pretends that the parts that are not alike are not part of the lawsuit. Wal-Mart is stripped of its defense because the individualized defense would be inconvenient to trying the case as a class action.

But that is precisely backward. If there are too many individualized issues to permit a defendant to defend itself adequately in a class action, that means the correct ruling is not to have a class action. If the Supreme Court rules in Wal-Mart’s favor later this year, it will not be to protect business, but to protect due process.

Theodore H. Frank is an adjunct fellow at the Manhattan Institute Center for Legal Policy.

Op Edsop-edOpinionSupreme Court

If you find our journalism valuable and relevant, please consider joining our Examiner membership program.
Find out more at www.sfexaminer.com/join/

Just Posted

Gov. Gavin Newsom, show here speaking at the City College of San Francisco mass vaccination site in April, faces a recall election due to anger on the right over his handling of the pandemic, among other issues. (Kevin N. Hume/S.F. Examiner)
Why Gavin Newsom’s popularity could work against him in the recall election

Top pollster: ‘We’re not seeing the Democrats engaged in this election. And that may be a problem…’

Passengers ride the 14-Mission Muni bus on Friday, March 12, 2021. (Jordi Molina/Special to S.F. Examiner)
Transit officials fear Free Muni pilot could hurt already-strained service levels

Supporters say fare cuts could increase ridership, help low-income residents

The vacant property at 730 Stanyan St. in the Haight currently houses a safe sleeping site for the homeless. <ins>(Kevin N. Hume/S.F. Examiner)</ins>
Affordable housing project on former McDonald’s site delayed as city adds units

The start of construction on an affordable housing project on the site… Continue reading

Visitors read a notice hanging on the Polk Street entrance to City Hall on Thursday, March 26, 2020, shortly after the building was closed. (Kevin N. Hume/S.F. Examiner)
City Hall reopening to the public on June 7 after long closure due to COVID-19

San Francisco will reopen City Hall to the public on June 7… Continue reading

Historic streetcars are undergoing testing on The Embarcadero to prepare for their return to service on May 15.<ins></ins>
What to expect for Muni Metro’s relaunch on May 15

Significant service restoration includes downtown subway tunnels and historic streetcars

Most Read