A Grudging Defense of Wal-Mart v. Dukes
56 Pages Posted: 2 Aug 2011 Last revised: 1 Sep 2012
Date Written: July 30, 2011
The Supreme Court‘s denial of class certification in Wal-Mart v. Dukes has been viewed by many commentators as a wholesale rejection by the Court of the use of discrimination law as an instrument of social change. In this Essay I argue that the Supreme Court would have been open to certification had the plaintiffs given more careful attention to the difficult doctrinal and normative issues raised by their case. The plaintiffs‘ evidence suggested significant problems with the treatment of women at Wal-Mart, but these facts were never tied in any systematic way to a plausible theory of liability under Title VII of the Civil Rights Act of 1964.
Wal-Mart was a structural lawsuit, one that challenged features of the workplace that are alleged to produce discriminatory outcomes. The plaintiffs argued that Wal-Mart management had delegated discretion to supervisors without providing adequate safeguards against the discriminatory exercise of that discretion. Structural suits, especially those challenging delegated discretion, raise many more difficult issues that the canonical discrimination case, which focuses on outcomes rather than on employer practices, and which alleges a clear intent to discriminate. Structural claims will be politically and morally acceptable only if they are based on a notion of employer fault such as negligence or notice that is intermediate between strict liability and intentional discrimination. Although current Title VII doctrine does not straightforwardly provide for intermediate levels of fault, legal scholars have proposed several thoughtful approaches that would modify existing law to allow for negligence or notice liability. Plaintiffs could have used these theories, in conjunction with an emphasis on Title VII‘s ― pattern or practice‖ provision, to construct a strong argument that members of the putative class in Wal-Mart had claims that were tied together by common questions of fact and law.
The Wal-Mart Court squarely endorsed the view already adopted by many lower courts that the common interests required for class certification could be established only by some examination of the theory to be advanced at trial. The Wal-Mart plaintiffs, however, made no serious effort to address the merits of their case, much less to advance a theory based on negligence or notice. These failures contributed to the disconcertingly broad language in Justice Scalia‘s opinion, which in places appears to bar all structural challenges to delegated discretion. Nonetheless, the opinion does not directly reject notice or negligence theories and still leaves open some routes for future plaintiffs to use such theories to challenge delegations of discretion.
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