Class Actions at the Crossroads: An Answer to Wal-Mart v. Dukes

Suzette M. Malveaux, The Catholic University of America, Columbus School of Law


The Supreme Court has recently decided to hear argument in the largest private-employer civil rights case in American history, Dukes v. Wal-Mart Stores, Inc. This historic case involves up to 1.5 million women suing Wal-Mart, one of the largest companies in the world, for alleged gender discrimination in pay and promotions, in violation of Title VII of the Civil Rights Act of 1964. Like many employees who challenge companywide employment discrimination, the plaintiffs in Dukes brought their case as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure and sought injunctive and declaratory relief, and monetary relief in the form of back pay and punitive damages. After several appeals, class certification was largely upheld by the Ninth Circuit in a sharply divided en banc opinion. The Ninth Circuit affirmed the district court’s Rule 23(b)(2) certification of a class of current employees with respect to their claims for injunctive and declaratory relief and back pay.

This ruling set the stage for review by the nation’s highest court because of the ruling’s potential impact on class actions all over the country, involving areas as varied as employment discrimination, securities, antitrust, and products liability. The potential impact of the case stems not so much from the size of the Dukes class as from how the case will influence the very survival of certain types of class actions. At issue is whether it will become more difficult for plaintiffs who seek monetary relief for systemic misconduct to meet the class action criteria. This is important because for many employees and others, a class action is their only meaningful access to the courts. Moreover, class actions are important to the civil justice system because of the substantial time and cost savings they provide the courts and parties. The Dukes case has the potential to redefine the terms on which this critical procedural device is available.