Attention All Female Workers: Will Wal-Mart Be Able to Roll-Back Class Certification of the Largest Employment Discrimination Case Ever?

6 Preview of Supreme Court Cases 249 (March 21, 2011)(Wal-Mart Stores, Inc. v. Dukes)

U of Texas Law, Public Law Research Paper No. 331

8 Pages Posted: 6 Feb 2013

Date Written: March 29, 2011


This article previews the issues and arguments in the Supreme Court’s blockbuster class action appeal in Wal-Mart Stores, Inc. v. Dukes. In the largest and most closely-watched employment discrimination class action in decades, the Supreme Court will determine whether millions of female Wal-Mart employees are entitled to billions of dollars of monetary relief through enforcement of a mandatory, binding, non-opt out class action.

The Court will focus on two primary issues: (1)Whether the certification of an employment discrimination class action involving millions of female Wal-Mart employees throughout the United States violated the Rule 23(a) threshold class certification requirements for commonality, typicality, and adequacy?, and (2)Whether the Wal-Mart class claimants may recover monetary damages in a Rule 23(b)(2) mandatory, injunctive, non-opt out class action?

Wal-Mart involves the Ninth Circuit’s class certification of a Rule 23(b)(2) class action. Courts have certified employment class actions pursuant to Rule 23(b)(2) where the remedy sought by the plaintiff class was an injunction either prohibiting an employer from engaging in discriminatory practices, or requiring an employer to take certain remedial measures. Federal courts have agreed that back-pay may be recovered in Rule 23(b)(2) employment class actions seeking injunctive relief. Compensatory damages, however, usually were not recoverable in Rule 23(b)(2) employment discrimination cases, because Rule 23(b)(3) is the category for damage class actions.

Since 1998, however, the federal circuit courts have split concerning whether employment discrimination class actions seeking damages may be maintained under Rule 23(b)(2). In 1991, Congress amended the Civil Rights Act to permit the recovery of compensatory and punitive damages in Title VII cases. In the wake of this amendment, federal courts have now articulated three different and conflicting approaches to whether courts may certify Rule 23(b)(2) class actions that also seek monetary relief.

Thus, the Fifth Circuit in 1998 held that when damages are not merely incidental to injunctive relief, then certification of a Rule 23(b)(2) employment discrimination case is inappropriate. Allison v. Citgo Petroleum Corp.. The Allison Court defined “incidental” damages as damages to which class members who could establish liability automatically would be entitled. If, however, an employment discrimination case seeking damage would require additional hearings to resolve the disparate merits of each individual’s case, then certification under Rule 23(b)(would not be appropriate. The Third and Eleventh Circuits have adopted the Allison approach to determining whether a court may certify a Rule 23(b)(2) employment discrimination class that includes monetary damages.

In response to the Fifth Circuit’s Allison decision, however, other circuit courts have explicitly refused to follow Allison’s “incidental damages” approach. Thus, the Second Circuit has indicated that when plaintiffs seek certification of a Rule 23(b)(2) class for both injunctive and non-incidental monetary damages, a court must assess whether (b)(2) certification is justified in light of “the relative importance of the remedies sought, given all the facts and circumstances of the case.” Robinson v. Metro North Commuter R.R. Courts that have adopted the so-called Robinson ad hoc approach consider whether: (1) reasonable plaintiffs would pursue the case for injunctive or declaratory relief even in absence of a monetary recovery, and (2) the injunctive or declaratory relief sought would be both reasonably necessary and appropriate were the plaintiffs to succeed on the merits. In this view, so long as the injunctive relief is predominant in value to the class, a court may certify a class that also seeks compensatory and punitive damages, even if the damages cannot be characterized as incidental to the injunctive relief.

Finally, and similar to the Second Circuit’s approach, the Ninth Circuit has eschewed the Allison approach and more liberally permitted the recovery of monetary and punitive damages in Rule 23(b)(2) employment discrimination classes, focusing on the plaintiffs’ subjective intent in seeking recovery. Molski v. Gleich. In affirming the district court’s certification order of a Rule 23(b)(2) class for back pay, the Ninth Circuit announced a modified “superior in strength” approach to determining the circumstances in which courts may certify Rule 23(b)(2) class actions that include requests for damages. As the largest employment discrimination case involving millions of female Wal-Mart employees, there can be no doubt that the Court’s decision in Dukes will garner massive media attention. This case pits millions of female Wal-mart employees alleging companywide gender-based discrimination claims, against the country’s largest retail establishment. Whether the Supreme Court upholds this class certification is being closely watched by not only women employees throughout the country, but by corporate America as well. The presence of large numbers of friend-of-the-courts briefs, on both sides of the appeal, demonstrates the high-stakes involved in the fate of this class certification decision.

Corporate American is concerned that if the class certification decision is upheld, this will make almost every large American corporation vulnerable to sweeping allegations of employment discrimination based on generalized theories of discriminatory corporate culture and subjective local decisions. Corporate America views the Dukes class certification as a watering-down of class certification standards that will enable class litigation to proceed on the most sweeping assertions of discriminatory behavior. This liberalization of class certification requirements is inappropriate, it is argued, where hundreds of thousands of individualized employment decisions are involved, and class certification effectively denies defendants their due process and jury rights.

Women’s groups, on the other hand, are concerned that the Court may seize the Dukes appeal as a platform for tightening class certification requirements in Title VII employment discrimination cases, thereby increasing the difficulty for female employees to seek recovery in discrimination cases. For women workers, if the Court reverses class certification and narrowly interprets Title VII requirements for class certification, the Dukes case could signal a significant regression in women’s rights in the workplace.

The Supreme Court’s resolution of the Dukes appeal will largely turn on the Court’s evaluation of the underlying Title VII claims, defenses, and substantive law, as this affects a rigorous analysis of Rule 23(a) class certification requirements. Because the class is not seeking compensatory damages, and the punitive damage claim has been remanded to the lower courts, the Court is less likely to elaborate on the Rule 23(b)(2) class certification issue. Whether federal courts may certify a Rule 23(b)(2) punitive damage class is an important issue, but that problem will remain for another day and another case.

Keywords: employment discrimination, class action litigation, Wal-Mart discrimination, Rule 23(b)(2) class, Title VII, Allison v. Citgo, Robinson v. Metro North, Molski v. Gleich, incidental damages, back pay

Suggested Citation

Mullenix, Linda S., Attention All Female Workers: Will Wal-Mart Be Able to Roll-Back Class Certification of the Largest Employment Discrimination Case Ever? (March 29, 2011). 6 Preview of Supreme Court Cases 249 (March 21, 2011)(Wal-Mart Stores, Inc. v. Dukes), U of Texas Law, Public Law Research Paper No. 331, Available at SSRN:

Linda S. Mullenix (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1375 (Phone)

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