Wal-Mart v. Dukes Rewritten

Abstract

This is a rewritten opinion of Wal-Mart Stores Inc. v. Dukes et al., 564 U.S. 338 (2011), published as part of the edited volume Feminist Judgments: Employment Discrimination Opinions Rewritten (Ann C. McGinley & Nicole B. Porter, eds.) (Cambridge University Press, forthcoming 2019). In Wal-Mart v. Dukes, the United States Supreme Court de-certified a nationwide class of women seeking to sue Wal-Mart for sex-based discrimination in pay and promotions. The rewritten opinion addresses and clarifies multiple issues raised in the case, including the contours of the substantive law of discrimination under Title VII of the Civil Rights Act, whether the proposed class met the commonality requirement of Rule 23(a), and whether certification was proper under Rule 23(b)(2). The author takes a feminist perspective by drawing from research in the social sciences on how discrimination operates and by re-establishing systemic disparate treatment theory and private class actions as critical tools for triggering organizational change and reducing employment discrimination.

Keywords: employment law, employment discrimination, Title VII, civil rights, disparate treatment, sex discrimination, gender discrimination, pay equity, class actions