The class action behemoth at the foot of the nation’s largest employer, Wal-Mart Stores Inc., has been vanquished by a narrowly divided Supreme Court. In an opinion for the nation’s highest court, Justice Antonin Scalia rejected the argument for the 1.5 million plaintiffs, all current and former female employees of the company, that this lawsuit involved claims “common” to the class.
Commonality is a requirement of the relevant rules governing class actions in federal court. The purpose of uniting a group of lawsuits under one procedural flag is to facilitate the efficient resolution of claims — efficiency that aims at protecting the interests of both plaintiffs and defendants. Plaintiffs come in different shapes and sizes to be sure, but the basic argument of the 1.5 million disgruntled employees is that Wal-Mart breached its obligations by engaging in persistently discriminatory practices and policies. In her dissent, Justice Ruth Bader Ginsburg offers an anecdote that makes concrete the behavior about which the employees’ claims are centered: “The selection of employees for promotion to in-store management ‘is fairly characterized as a tap on the shoulder process, in which managers have discretion about whose shoulders to tap.’” Yet, to Justice Scalia and the court’s conservative majority, the kinds of claims raised by this gigantic group of plaintiffs were likely distinct, particular to the employer-employee relationships, and not properly swept together as gender discrimination writ large in a fashion that would enable an intrepid court to resolve this far-flung, nationwide dispute.
Undergirding the difference in approach to interpreting the class action rules is a competing perspective on what it means for a large employer — not any large employer, but here the largest of them all! — to have a corporate culture that creates conditions in which gender discrimination festers. For the dissent, it is perfectly worthwhile for a diverse group of employees to craft a legal strategy that explains how the facts on the ground support the argument that Wal-Mart managers have taken advantage of this culture to subjugate female employees. However, the court majority declares, quite plausibly, that this misses the essential point. Quoting a leading scholar on class actions, the court insists that “[w]hat matters to class certification . . . is not the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.”
In the end, the resolution of this threshold matter in the surely ongoing civil rights lawsuit involving Wal-Mart has a palpably “chicken-or-the-egg” quality; that is, we will not truly know until the myriad facts are aired and the courts grapple with the complex legal issues whether — and to what extent — Wal-Mart’s behavior as a super-sized employer created a common culture of discrimination and thus an environment in which the careers and livelihoods of more than a million female employees have been imperiled. Without the availability of the class action device as a mechanism for resolving these questions, the legal disputes will decided, for better or worse, on a retail, not wholesale, basis.
Daniel B. Rodriguez is the fellow in law and urban economics at the Baker Institute. He is also the Minerva House Drysdale Regents Chair in Law at The University of Texas at Austin.