To the surprise of no one, the Supreme Court ruled in favor of Wal-Mart in a preliminary stage of its mammoth sex discrimination case, Wal-Mart v Dukes. The court held unanimously that the lawsuit was just too broad to be a class action. In such cases, the court can take it upon itself to reconfigure the case into a proper class action. However, the Court split 5-4, with the conservative 5 arguing that the class of 1.5 million female Wal-Mart employees did not have enough in common to be certified as a class. Their claims would have to be pursued individually or in small groups. This is a major ruling making it harder for future plaintiffs to be certified as a class and pursue a class action.
The 5-4 ruling continued the dismantling of class action lawsuits that we last saw in this term’s AT&T case. In the past, class action suits were viewed by plaintiffs, defendants, and courts as a way to increase efficiency by consolidating similar causes of action into one. Class actions reduced time and money committed to lawsuits by both parties and the court itself. This trend toward breaking up classes will increase burdens on everyone.
As usual, the greatest burden will be on the poor, in this case Wal-Mart employees. Many of the women working for Wal-Mart earn so little that they qualify for welfare—and of course, low wages go right to the merits of the case. Even with low cost Legal Aid attorneys—who are in short supply—there are court costs and time lost from work. Breaking up the class means that many will decline to go on—they will be priced out of justice.
The Court’s ruling is considered to favor Wal-Mart by de facto reducing the number of plaintiffs it will have to face, even as it increases the total amount Wal-Mart could pay in court and attorney fees. Wal-Mart likely believes that its corporate lawyers will be able to delay and overwhelm individual plaintiff attorneys better than a class action team of lawyers.
The Supreme Court did not officially address the merits of the case, the claim that Wal-Mart systematically discriminated against women, denying them raises and promotions even when their job performances were rated higher than the men who did receive raises and promotions.
However, Justice Scalia in his majority opinion, based as it was on technical rules of certifying classes in class action suits, stated that the workers “provide no convincing proof of a companywide discriminatory pay and promotion policy.” This is getting into the facts of the case in a way that is well beyond what the Supreme Court needs to do to evaluate a rule 23 certification case—in other words, judicial activism.
Justice Ginsburg for the minority argued to allow the Wal-Mart plaintiffs to fall back to a lower court and regroup under a different legal theory. Justice Ginsburg’s approach is how courts routinely dealt with parties who made technical errors: send them off to fix the errors.
The Court also used to be inclined to help the poor and inexperienced, especially when taking on large corporations. This Court has shown itself to be firmly on the side of Goliath.