The Supreme Court recently issued its long-awaited decision in Wal-Mart v. Dukes (opinion), the largest class action discrimination suit in history. The bottom line is that the Court unanimously rejected the Ninth Circuit’s certification of a class comprised of approximately 1.5 million women who worked for Wal-Mart. The biggest impact of the Court’s decision, however, was the holding by five members that the claims lacked commonality. In the words of Justice Scalia, the class cannot sue over millions of employment decisions, “[w]ithout some glue holding the alleged reasons for all those decisions together.”
Now, employers facing or fearing class action discrimination suits will have to ask the preliminary question about the class: Got Glue? The Supreme Court’s opinion helps to define what is, and to a larger extent what is not, glue.
Can corporate policy be glue? You better believe it. In this case, however, there was no discriminatory policy. In fact, there was a company-wide policy of anti-discrimination. The plaintiffs tried to rely on Wal-Mart’s policy of granting broad discretion to individual managers in making pay decisions. But, in a company the size of Wal-Mart, “it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction.” In short, no glue.
The Court’s opinion notably downplays the value of statistical evidence in this situation. The plaintiffs provided statistical evidence which they maintain showed “statistically significant disparities between men and women at Wal-Mart [that] can be explained only by gender discrimination.” The Court reasoned that national and regional disparities failed to show discrimination at the district level, let alone the individual store level. “A regional pay disparity, for example, may be attributable to only a small set of Wal-Mart stores, and cannot by itself establish the uniform, store-by-store disparity.”
Affidavits from individuals showing anecdotal evidence of discrimination can provide some glue, but it depends on the circumstances. For example, the Court noted a previous case in which there were anecdotes for every eight members of the class, mostly coming from the operational centers where the class members were based. Here, the plaintiffs had only 120 affidavits for 1.5 million people. Fourteen entire states had no corresponding anecdotes, and half of all states had only one or two for the entire state. That’s not glue.
The Court found the proffered expert testimony in this case unpersuasive to say the least. A sociologist testified regarding “social framework” analysis, which allegedly showed that Wal-Mart’s corporate culture was susceptible to gender bias. But, the expert couldn’t “calculate whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” No glue. In fact, it is questionable whether his testimony was even properly admitted.
The Court used the Wal-Mart case as an example of a class with no glue. As discussed previously, it also provides some hints about where future classes may find some.
Phil Miles is an attorney in McQuaide Blasko’s Labor and Employment Law Practice Group and publisher of Lawffice Space, an employment law blog.