The Hazards of Dukes: The Substantive Consequences of a Procedural Decision

Abstract

In Wal-Mart Stores, Inc. v. Dukes, the U.S. Supreme Court not only reversed the grant of class certification to one of the largest employment discrimination classes ever, but also indelibly altered the substance of employment discrimination law. While many scholars have lamented the fact that this potential class action was not allowed to move forward, this article is the first to look comprehensively at the possible substantive changes that the Dukes decision may effect on cases brought pursuant to Title VII. Specifically, this article examines the language of Dukes, as contrasted with Supreme Court precedent in the areas of unjustified disparate impact and systemic disparate treatment cases. The article also analyzes Dukes' potential effect on discrimination cases that rely on social framework evidence. The inevitable conclusion is nothing short of shocking: the Court, in this supposedly procedural decision, has rewritten much of the substance of employment discrimination law.