You Can’t Get There From Here: Implications of the Walmart v. Dukes Decision for Addressing Second-Generation Discrimination

In Wal-Mart v. Dukes, the Supreme Court determined the plaintiffs had not shown, based on the evidence, that there were questions of law or fact common to the class. The allegedly discriminatory decisions had been made by individual supervisors at different stores who had been given discretion by Wal-Mart to make pay and promotion decisions. The Court stated the problem was that there was no specific evidence that all the discretionary decisions were made in a manner that reflected gender bias. This case not only reversed decades of court acceptance of social framework evidence in employment litigation but also insulates businesses from class action suits by imposing a huge barrier to class certification. This Article first reviews the Wal-Mart v. Dukes decision with respect to how it adversely affects the viability of class action suits that have historically provided recourse for individuals who are less able to pursue individual claims of discrimination. This Article then examines implications of Dukes and other decisions for the court’s ability to address the problem of second-generation discrimination. In particular, we focus on the difficulties created by requiring the application of a clearly defined policy and practice to all cases involved. Finally, this Article suggests that given that policy and practice continue to be a requirement for class certification, one could meet this requirement by reframing classes using a theory analogous to the “fraud on the market” doctrine employed in securities cases. In other words, organizations that have a policy of nondiscrimination but allow individual managers to make employment decisions any way the managers please could be viewed as perpetuating a type of “fraud-on-the-employment market” in which plaintiffs have relied on a material misstatement of fact when accepting their positions.