National Women's Law Center

The U.S. Supreme Court today blocked an expansive sex discrimination class action lawsuit lodged against the nation’s largest retailer Wal-Mart.

The decision by the high court reverses a ruling by the U.S. Court of Appeals for the Ninth Circuit that permitted the massive class action litigation from moving forward. “The lawsuit could have involved up to 1.6 million women, with Wal-Mart facing potentially billions of dollars in damages,” The Associated Press stated.

Writing for the Court in Wal-Mart v. Dukes, Justice Antonin Scalia said the “crux of this case is commonality – the rule [Rule 23(a)(2) of the federal rule of civil procedure] requiring a plaintiff show that ‘there are questions of law or fact common to the class.’”

Scalia continued, “Commonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury.’ This does not mean merely that they have all suffered a violation of the same provision of law. Title VII [of the Civil Rights Act], for example, can be violated in many ways – by intentional discrimination, or by hiring and promotion criteria that result in disparate impact, and by the use of these practices on the part of many different superiors in a single company. Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention – for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution – which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”

In this instance, the plaintiffs, Scalia concluded could not meet commonality by presenting evidence that Wal-Mart operated under a general policy of discrimination. Instead Scalia maintained that such evidence is “entirely absent here.”

Justice Ruth Bader Ginsburg, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan lodged an opinion concurring in part and dissenting in part. The four justices dissented from the conclusion that the Wal-Mart plaintiffs’ complaint lacked commonality. “Wal-Mart’s delegation of discretion over pay and promotion is a policy uniform with the women plaintiffs," Ginsburg wrote.

ACS held a telephone media briefing today on the decision, featuring Catholic University law professor Suzette Malveaux, Skalet & Mehri founding partner Cyrus Mehri and DePaul College of Law professor David Franklin. Audio of the briefing is available here.

In March an ACS panel discussion explored the Wal-Mart litigation and its impact on class action causes, in which Professor Malveaux also participated. Following the discussion, Malveaux talked with ACSblog about the case, saying at the time that there was a real risk that the standard for bringing such an expansive class action lawsuit could become much more diffiuclt to meet, making it harder “for employees and consumers and many people with small claims and few resources to collectively come together and challenge systemic discrimination.”

Her interview and the ACS panel discussion are available here.

Marcia D. Greenberger, co-president of the National Women's Law Center, blasted today’s opinion, saying the high court “has told employers that they can rest easy, knowing that the bigger and more powerful they are, the less likely their employees will be able to join together to secure their rights. The women of Wal-mart – together with women everywhere – will now face a far steeper road to challenge and correct pay and other forms of discrimination in the workplace.”