ProfessorBrittany L. Raposa
CaseCast™ – "What you need to know"
Brief Fact Summary. A small group of women who alleged discrimination on the basis of gender filed a suit against Wal-Mart Stores, Inc. (D). The action was sought to be changed to a class action, with the certified class represented by the original small group of women who sued the company. This class was the largest ever class.
Synopsis of Rule of Law. (1) The Federal Rules 23(a)(2) lays down a “commonality” criterion for class certification, under which more than one million women with a common employer will have to prove they were all subject to the same discriminatory employment policy, to be certified as a class.
(2) The Federal Rules of Civil Procedure 23 (b)(2) cannot be used to certify a claim for monetary relief unless this is incidental to the declaratory or injunctive relief sought.
Issue. (1) Can a class be made up of more than one million women under a single employer all over the U.S. be certified if they cannot prove the commonality of issue or fact as required under Federal Rules 23(a)(2), in that they are not able to show that all class members were subject to a uniform discriminatory employment policy?
(2) Is a claim for monetary relief permitted to be certified under Federal Rules of Civil Procedure 23 (b)(2) if it is not secondary to obtaining an injunction or declaration?
Held. (Scalia, J.)(1) No. A class consisting of more than a million women employees of a single employer all over the U.S. cannot be certified as such if they fail to prove that all the members were subject to the same discrimination in respect to the employment policy, and so do not fulfill the criterion for commonality of fact or issue. The usual rule as concerns litigation is that it is conducted by and on behalf of the individual named parties only. A class action is an exception, and it must be justified by the fact that a class representative must be part of the class in fact, interest and injury. This criterion is set forth in Rule 23 (a), under the four requirements of numerosity, commonality, typicality and adequate representation. These requirements make sure the class is limited to those whose claims are identical with those of the named plaintiffs. In this case, the group argument that Wal-Mart practices discrimination according to a pattern should be taken as their attempt to prove commonality.
The point to be fixed here is whether the particular employment decision quoted by the named plaintiff under Title VII can be used to sue for millions of employment decisions at the same time. Unless there is a commonality in the alleged reasons for those decisions, no common answer as to whether or not discrimination exists will be produced by examining all the claims of the class members. The testimony of the sociology expert who appeared for the plaintiffs does not provide useful support to the allegation of a policy of gender discrimination because the culture of Wal-Mart is conducive to gender bias. Statistical analyses showing that there is a gross difference between the sexes in matters of pay, promotion or representation also do not prove a commonality of fact and issue. This would be better served by showing gross disparities in these parameters from store to store. A third attempt to prove a generally discriminatory policy on the basis of gender by submitting 120 separate affidavits, or one for every 12,500 members of the class, also does not prove the fact. The diversity of the plaintiffs’ group as regards job level, duration of employment, store worked (out of 3,400) in which state (out of 50), under many supervisors subject to many different regional policies, and job satisfaction and progress, all point to the fact that this suit is not representative of all the women in the class.
(2)No. Claims for monetary relief are not applicable under Federal Rules of Civil Procedure 23 (b)(2) if the claim is not ancillary to an injunctive or declaratory relief. A class which is in accordance with Rule 23 (a) must also satisfy one at least of the three requirements of Rule 23(b). In this case the class was sought to be certified on the basis of Rule 23(b)(2) which is meant to apply to a class for whom a final injunction or declaration would provide relief for the class as a whole from a party who acts or refuses to act on a basis which affects the members of the class as a whole. This would mean that a single injunction or declaratory judgment of the court in this case would provide relief to each and every class member, which is not the case. Moreover, the monetary award in this case could not be applied to all members of the class. Thus this rule does not allow class certification in this situation. The monetary relief is not primary but incidental, and is a direct consequence of the class liability being established, without the need for additional hearings. The Ninth Circuit had established a “predominance test” for the allowability of monetary claims under Rule 23 (b) which allowed such claims to be certified as long as they were secondary to the claims for injunctive relief. This test was rejected for the “incidental damages” test used above. The decision is reversed.
Dissent. (Ginsberg,J.) The class should not have received certification under Rule 23(b)(2) since the plaintiffs in this discrimination suit seek non-incidental monetary relief in addition to injunctive or declaratory relief. Rule 23(b)(3) might be applicable if they show that the common issues of the class predominate over the individual issues such as questions regarding the individual’s monetary relief, and that the best adjudication mode in this case is a class action. This would need further consideration and decision by the Court. When the majority opinion of the Court refuses to recognize the certification of the class citing the “commonality” issue under Rule 23 (a)(2), it confuses this rule with the determination categories of Rule 23(b)(3) by bringing in the concept of dissimilarities in the class, which is properly cited under the latter rule.
Discussion. This created a landmark in U.S. legal history and was criticized by many as unfairly and unfittingly raising the standard for class certification, which would redound adversely to those plaintiffs with genuine grievances under Title VII. Following this decision, district courts will have to put all cases where commonality is alleged under the scanner to make sure the common inquiries proposed in the suit will give rise to answers which can be applied to all members of the class. Plaintiffs will have to prove a general policy does exist and give evidence of the way it affects each class member in such cases.