More Decentralization, Less Liability: The Future of Systemic Disparate Treatment Claims in the Wake of Wal-Mart v Dukes

The Supreme Court’s decision in Wal-Mart Stores v. Dukes foreclosed class action certification for over 1 million female employees of the retail conglomerate because they failed to meet the commonality requirement of Rule 23 of the Federal Rules of Civil Procedure. While this decision will have a palpable impact on class action discrimination suits, less obvious is the effect it will have on individual Title VII claimants. Although Dukes spoke to class action lawsuits, the crux of the Court’s analysis rested on the merits of the plaintiffs’ claims, not merely on procedural deficiencies with respect to Rule 23’s commonality requirement. Specifically, the Court found that the women had failed to show that they were each victims of a “common discriminatory practice” and that Wal-Mart operated under a general policy of discrimination. Because the Wal-Mart employees could not show that Wal-Mart had a discriminatory “corporate culture,” the Court held that the women could not satisfy the commonality requirement, and therefore denied class certification. The significance of the Supreme Court’s decision is that most workplace discrimination occurs as a result of disparate social structure, and not as a result of individual wrong-doing. Thus, future Title VII plaintiffs will be relying on the same type of evidence that was used in Dukes, evidence that Supreme Court flat out rejected as insufficient. While Dukes will inevitably create difficulties in class certification, its impact may likewise reach the merits of discrimination claims as a whole, thus significantly impacting the future of Title VII systemic disparate treatment claims.