Supreme Court

Supreme Court Unanimously Rejects Class Action Certification in Wal-Mart Sex Discrimination Case


The Supreme Court disappointed progressive activists today with its decision in Wal-Mart v. Dukes. At issue was whether a class-action gender discrimination suit filed on behalf of as many as 1.5 million female Wal-Mart employees could proceed in federal court. All nine justices agreed that the class-action suit at the heart of the case should never have been certified. There was a 5-4 split over the scope of the ruling, with Justice Ruth Bader Ginsburg writing an opinion (joined by her fellow liberal justices) that concurred in part and dissented in part from Justice Antonin Scalia's majority opinion, but on the question of whether the original class-action suit should have been certified all nine were in agreement.

Marcia Greenberger of the liberal National Women's Law Center quickly attacked the Court for telling employers "that they can rest easy, knowing that the bigger and more powerful they are, the less likely their employees will be able to come together to secure their rights." I'm sure other progressive activists will make similar attacks, though I doubt they'll get very much traction. You can't really spin this one into Citizens United part II when you have the Court's liberals and conservatives joining together to reject what would have been the largest class-action certification in U.S. history.

NEXT: Take Buy My Wife. Please!

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  1. We can thank Don’t-Sue-People Panda’s amicus curiae brief for the unanimity.

    1. +1 lulz – nice reset

  2. You can’t really spin this one into Citizens United part II

    How much do you care to bet on that? They will ignore the unanimous portion and focus on the split – howling about the evil conservative wing preying on the weak. They aren’t about to let an inconvenient fact stand in the way of their holy narrative.

    1. Yeah, Jezebel already has.

      1. this is the meme at Daily Kos as we speak… “business wins again and again in the Roberts’ court” stuff

        1. “Rule of law wins again”, maybe. It’s not discrimination just because something doesn’t break down precisely on demographic lines. You have to prove discrimination to win damages.

          1. there are all sorts of problems with the regression analysis, among other things.

            but with the Kos’ers it’s always about evul corporashuns and their govt enablers

  3. I despise shopping at WalMart. At the same time, I have less than no time for these morons who want to make them into some cartoon Kochtopus slave-driving small business destroyer.

    So good on the court – ALL the justices, for once! – in a good decision based on the law. IMHO, of course.

    And fuck Marcia Greenberger and all the other victims-in-search-of-a-perp. Just fuck you.

    That is all.

  4. So, what kind of odds would I have to give HnR for someone to take me up on the bet that John and MNG are secretly gay lovers, who just hatefuck in the morning links and then make passionate love at night?

    1:1, or could I push anyone higher?

  5. Ann Althouse does a good job on this one.…..ssive.html

    1. Unless “this one” is a box of wine, you’re wrong. She never does a good job on anything else.

  6. Lionel Hutz: Well, I didn’t win. Here’s your pizza.
    Marge: But we did win.
    Lionel Hutz: That’s okay. The box is empty.

  7. Today’s ruling…is tantamount to closing the courthouse door on millions of women who cannot vindicate their rights one person at a time.

    Hurray for the National Women’s Law Center. Fighting for a woman’s right to choose to kill her unborn baby while furiously denying a woman’s right to sell her labor for any price she so chooses.

    1. kill unborn babies? if the born can be killed, why should the unborn be exempt?

      1. Did swillfredo posit that it’s OK to “kill the born”?

        No. Way to Urine up the site, Urine.

        1. a fact doesnt require a posit sherlock. the born are killed. why should the unborn be exempt?

          1. I agree. If a fetus shoots a toddler in daycare just to watch him die, then he or she deserves the death penalty.

            1. No jury could convict me.

            2. “Oh, the baby jumped and ‘Pow’ there’s Jason with his head gone. I was horrified.”

          2. the born are killed. why should the unborn be exempt?

            Killing the born brings with it consequences. According to the National Women’s Law Center there should be none for choosing an abortion. However when a woman chooses to work at a WalMart and agrees to a salary that may or may not be more than someone else the federal government needs to step and interfere with her “choice”.

            1. consequences?

  8. “I’m sure other progressive activists will make similar attacks, though I doubt they’ll get very much traction.”

    But if the Supreme Court isn’t there to help slow down Wal*Mart, make them unionize and stop selling inexpensive merchandise that people want?

    Then what is the Supreme Court for?!

    1. For great social justice!

      1. You know who else was for great social justice…

        1. Captain?

          1. Toni Tennille?

        2. Martin Luther?

        3. Martin Luther King, Jr?

        4. Tony and Mung?

        5. Godwin?

        6. Hitler? Oh wait, that’s actually not the correct answer for once…

        7. Every social ZIG?

      2. Pro Libertate, if you want me to take off every zig, we can only do that in a private room. It’ll be 200 an hour.

        1. Suddenly “make your time” doesn’t sound like such bad Engrish.

  9. Yes, let’s make class certification totally vague and generalized, so that we can increase the scope and scale of litigation in this country. There isn’t enough of that, is there?

    Class-action suits are, to simplify things a bit, for litigation where there are common issues among the plaintiffs to such an extent that some can represent them all. Leaving aside how often that can be true with a class in the millions, it’s clearly not the case here.

    1. ProL, why do you hate defenseless womyn?

      Also, this reminds me – where’s Groovus Maxmus been (forever), and WHERE IS OLD MEXICAN? Did OM get detained by ICE or something?

      1. He’s in a very long surgery?

        Not sure about OM. Unless he’s the patient.

        1. Yeah, I just wondered – I like those guys. I read that J sub D passed away 🙁 Sad.

          1. OM has been working, or some such thing. He mentioned it a while back.

            My guess? Given that OM is clearly just the Dos Equis guy, he’s currently hiking across the artic in his underpants, drinking and banging along the way.

            1. That’s EXACTLY how I picture OM. Therefore, I am happy for him! GO OM! Stay thirsty, my friend…

              1. I don’t always drink beer, but when I do, I fuck polar bears.

                1. male or female?…or do it matter?

            2. Groovus Maxmus said he had to go do his residency or some such thing. I think he was here during an education break.

              1. Groovus should stop being so selfish and contribute to H&R in between sutures.


                1. “Nurse, read me SugarFree’s comment again. [Pause.] No, that is not correct. Post the following comment in response. . . .”

                  1. “Nurse, read me SugarFree’s comment again. [Pause.] No, that is not correct. Post the following comment in response. . . .”

                    Quick, call Groovus, I’m about to die laughing.

                    1. These blogs are missing something w/out OM.n I miss his famous quote, “statist fuck”.

                    2. These blogs are missing something w/out OM

                      Persistent annoyance?

      2. I’ve missed OM too. This place is much diminished without his amiable kookery.

        1. Isn’t “amiable kookery” a defining characteristic of all libertarians?

          1. he was a cock

          2. Some of us smell too bad to be amiable.

    2. I love class actions. I think it’s great that some random Alabama judge gives a law firm $3 million to split while I get a coupon for $25 off at the Epson online printer store.

      Two boxes of photo paper free? Sign me up!

      1. Personally I would prefer to get a “I was part of a class action lawsuit and all I got was this tupid t-shirt.” shirt.

        1. That would only be acceptable if the t-shirt actually had that typo.

      2. That’s only true because it’s funny…

      3. I have recieved checks for less than $0.25 more than once over a credit card class action. Are you telling me the lawyers chjecks wer for a larger amount?

        1. I loved those credit card class actions. I mean to say, what part of “you have to pay your bill on time” is so freaking hard to understand?

          1. Lawyers need to eat, too.

  10. OT: More happy news.

    “Instead, barely half a year after his Senate defeat, Crist is working as a partner for Morgan & Morgan, a personal-injury law firm headquartered in Orlando. The firm is famous throughout Florida for its heavy rotation of TV ads soliciting clients: in an especially hokey one, the two named partners, John Morgan and his wife, Ultima, appear with their dogs. In early May, a new spot hit the airwaves, featuring the ex-governor himself.”

    1. It’s so perfect that it makes me question the validity of this plane of existence.

      The other perfect scenario is that he teams up with George Hamilton to sell tanning products via infomercial.

      1. They could use the HSN studios in his hometown of St. Pete for that infomercial. Maybe he could start a think-tank on how to lose elections most effectively.

        1. Truly, he has something to impart to the world when it comes to losing election campaigns. What a doofus!

    2. The oily ex-governor got a partnership with the most visible ambulance chasing firm in Florida? That’s just great.

  11. Did anyone else read the case name first as “Wal-Mart v. Dykes?”

  12. Good decision on the merits. The claims and potential remedies were just too diverse to allow a single plaintiff (or a small handful of plaintiffs) to stand as a surrogate for all plaintiffs.

    1. I seem to recall that the case was about managers having too much discretion. That’s very hard to generalize across positions, locations, etc., all while showing a pattern of actual discrimination.

      1. and the “actual discrimination” was “demonstrated” via regression analysis

        1. There’s some of that in disparate impact cases, but I don’t think it’s very valid in this sort of situation.

  13. Pity the poor ambulance chasers.

    Now the won’t be able to gin up settlement trust fund scams like they’ve been doing with asbestos for years.

    1. “My husband worked in a power plant where the asbestos was falling like rain.”

      Where the fuck was OSHA???

      1. who needs OSHA when the “free market” will sol-ved it?

        1. What an idiot.

          1. He brings the dumb like no other

            1. There’s always shrike, Fatty.

      2. The shift manager kept saying “this is a lawsuit waiting to happen”.

  14. And, of course, I can’t continue reading that suit name and not picturing Eddie Murphy’s character being choked by Dan Ackroyd’s character in “Trading Places”:


    1. Also, “I am Lionel Joseph, exchange student from Cameroon….MERRY New Year!”

    2. And that movie seems oddly appropriate these days:

      “I had the most absurd nightmare. I was poor and no one liked me. I lost my job, I lost my house, Penelope hated me and it was all because of this terrible, awful Negro.”

  15. Hmm, let’s see what Jezebel has to say about this:

    Of course, Ginsburg and her Democratic-appointed colleagues saw it differently. In arguing that they would have sent the plaintiffs to a lower court and try the case under different rules, Ginsburg pointed out, “Women fill 70 percent of the hourly jobs in the retailer’s stores but make up only 33 percent of management employees,” and that “the plaintiffs’ ‘largely uncontested descriptive statistics’ also show that women working in the company’s stores ‘are paid less than men in every region’ and ‘that the salary gap widens over time even for men and women hired into the same jobs at the same time.” Those are a lot of individual decisions that have nothing to do with each other.

    And Ginsburg didn’t have nearly as rosy view of what world the individual decisions, influenced by a top-down culture, would create:

    Managers, like all humankind, may be prey to biases of which they are unaware. The risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes.”

    In the world depicted by Scalia, Thomas, Alito, Roberts, and Kennedy, systemic discrimination only exists when written down or with a distinct policy, which in today’s lawyered world is an exceedingly high standard. Ladies, you’re on your own.

    Y’see, it can’t be just a bunch of individual dicks. Because that would mean that individuals can make decisions, and that would just be scary.

    1. The scary part is Ginsburg’s quote, which essentially was in dissent although it was a unanimous ruling-

      The high court’s majority agreed with Wal-Mart’s argument that being forced to defend the treatment of female employees regardless of the jobs they hold or where they work is unfair.

      Justice Antonin Scalia’s opinion for the court’s conservative majority said there need to be common elements tying together “literally millions of employment decisions at once.”

      But Scalia said that in the lawsuit against the nation’s largest private employer, “That is entirely absent here.”

      Justice Ruth Bader Ginsburg, writing for the court’s four liberal justices, said there was more than enough uniting the claims. “Wal-Mart’s delegation of discretion over pay and promotions is a policy uniform throughout all stores,” Ginsburg said.

      I don’t understand why she voted in the overall ruling if she feels this way.

    2. Oh, wow. On the non-highlighted discussion comments, someone just suggested court-packing.

      Because THAT went over well.

      1. Thank you for pinch hitting for NutraSweet and giving us the Skirts’ Femullets’ perspective.

        1. Maybe he can link to the sell your wife post.

  16. You can’t really spin this one into Citizens United part II when you have the Court’s liberals and conservatives joining together to reject what would have been the largest class-action certification in U.S. history.

    Pfft. It’s easy. It’s a known fact among the left that the Justices were replaced with their Reptoid dopplegangers from the Planet Hayek by Karl Rove in 2006.

    1. This explains why they cancelled V after the Republicans won the House!

  17. The thing is, even if all these individual managers are sexist bastards, or a large portion are (and Scalia was pretty scathing on the witness who said the percentage was somewhere between 0.5 and 99% of them), isn’t suing Wal-Mart for it like suing human nature? Or society? Or the atmosphere? Apparently humans in 2011 have biases, therefore Wal-Mart should pay for them, is basically the thinking.

    Which means, we set up regulators to decide what human nature should be at any given moment, and then punish the hell out of reality for not having gotten there first.

    1. Very good point.

    2. i think hitler said the same thing about jews and crippled people.

  18. “I’m sure other progressive activists will make similar attacks, though I doubt they’ll get very much traction.”

    traction? like in a tractor pull?

  19. This was clearly just an attempt to damage Walmart, not help oppressed women or whatever bullshit was claimed. Leftwing fetishists should be tea-bagged by a Spaniard and then pee-ed on.

  20. Hot naked Russian chick swims with whales. God I love the British tabloids.…..rctic.html

    1. Note: there be boobies, and I don’t mean on the whale.

    2. The beauty of nature: Like a scene from a classic pre-Raphaelite painting, naked Natalia Avseenko swims with beluga whales in the Arctic

      Simply awesome. Thank you, John.

    3. Except I’m not really seeing the “hot” factor — looks rather plain to me, even in full nakedness. But I understand “Potato-Faced Naked Russian Eco-Nutjob Chick” doesn’t have the same pull.

      1. +1. Plain face, plain body. At least she wasn’t a fatass, although that would kind of make the story work better.

    4. it was thought that there would be more chance of striking up a rapport with them without clothes as a barrier.

      This is enough to rescind my wholesale condemnation of “science”.

  21. Russians have a higher class of crazy broad than we do, it seems.

    1. Yeah. It is all fun and games until she jumps into 30 degree water and expects you to follow.

      1. This may be the only situation where a neoprene suit would make things less kinky.

  22. In one small corner of the world, collectivism was defeated, at least temporarily. Yay!

    1. Yeah, but Barry and his minions are still on it.

  23. I wish these people would actually read the Court’s opinion. Around page 12 they say that the “expert testimony” on the part of the 1.6 million female workers only said that the Corporate Culture of Walmart was vulnerable to discrimination but he would not say whether .5% or 95% of employment decisions were influenced by stereotype bias. Essentially his testimony could be questioned as even being expert.

    Even if you ignore that, they are using 120 some anecdotes to represent 1.6 million people. They deal with about 6% of the 3400 stores in the US to prove a corporate wide policy. The only thing these women have in common is the fact that they’re women. That’s the only thing tying 1.6 million people together. Location, time with the company, explicit complaint, job held, etc differ.

    1. I wish these people would actually read the Court’s opinion.

      Me too. Or at the very least I wish the media would report not only on the facts of a case but on the law at issue. Invariably cases are reported on as “A said this, B said that, and B won.” This leads the average person to decide whether it was a fair ruling based only on the facts, which is even more absurd at the appellate level where it’s questions of law that are being determined. But that would require reporters that, well, understand what they’re reporting on.

  24. I thought libertarians like law suits?

    I thought that in the free market we don’t need regulations?

    If someone does me wrong, I can bring a law suit.

    Like healthcare. If we didn’t have regulations and an insurance company decides to weasel out of paying (something that rarely happens and is merely an anecdote) we can bring on a law.

    It’s just anti business when u let people collectively sue the big guy ah? It’s best that you let each person sue AETNA individually.


    1. The question isn’t whether there was any discrimination or anything else actionable. The question is whether a class should be certified, basically on the sole fact that the alleged class is all female and works at Walmart.

      Nothing prevents any of the 1.5 million from suing individually or in smaller classes that might actually have common facts and legal questions.

      1. Sure, the little guy can get a lawyer, sue the big corp, loose, and set precedent for the rest.

        1. Well, that’s not really true. First, you can always file a complaint with the EEOC.

          Second, just because the entire female workforce couldn’t be certified as a class, that doesn’t mean a smaller class couldn’t be certified.

          Finally, contingency fees are available for these sorts of actions.

          1. A complaint with the EEOC….ha ha ha

            What are they going to do? File a class action suit on your behalf?

            1. Who makes the money in most class actions? The members of the class, or somebody else?

            2. Are you a lawyer? If you are, I’d like to know how you think all of these claims can be consolidated into one case when you’re dealing with a million people who presumably have hundreds of thousands of different supervisors that need to be deposed, which means probably billions of documents to be produced and reviewed during discovery.

              I personally agree that the civil justice system is entirely consistent with libertarianism. The problem here is a libertarian problem insofar as the plaintiffs’ claim is clearly against the rule of law (specifically FRCP 23(a)(2)-(4)).

        2. If a lawyer is representing a class of 1.5 million people, that lawyer has no client. The attorney is just trying to jack the company for his own enrichment.

    2. Each of the supposedly “discriminated”-against women are still free to pursue a lawsuit on their own, you stupid fuck.

      1. Sure, the little lady can get a lawyer, sue the big corp, loose, and set precedent for the rest.

        1. Yes, when one person sues their employer for discrimination, that sets precedent for every other employee who might sue for discrimination in the future. PLEEEEEEASE tell me you’re not actually studying law.

        2. What is the little lady going to loosen? Her hair? Her shoes? Her bra?



  26. Courts generally have been much stricter about certifying large plaintiff classes in recent years, at least based on the cases I’ve seen.

    Employment discrimination cases, by their very nature, involve highly individual circumstances and are rarely litigated in class actions. Even in a case of an allegedly discriminatory policy, there are other factors for each individual employee affecting why they didn’t get hired or promoted. Those really have to be litigated individually.

    Cases involving violations of wage and hour laws are much more likely to be class-certified, since they typically involve a single corporate decision or policy that uniformly affects employees.

    This case was so far over the line of what is normally appropriate for class-action certification, that I’m surprised it got as far as it did. Well, I guess I shouldn’t be, since it was brought in the Ninth Circuit.

    1. I think the Court was pretty shocked that it got that far, too.

    2. “Well, I guess I shouldn’t be, since it was brought in the Ninth Circuit.”

      You can be sure it was no accident that the the case was bought there.

  27. As a lover of economic freedom, this decision is great. As a future lawyer, this decision is awful. I’ll just have to make sure to couch my published commentary on the case in terms of “fairness” and “sexism”. Yeah, people are dumb enough to fall for that.

  28. All trolling and name calling aside, I agree with the SCOTUS.

    Given the SIZE of Walmart, there’s no way anyone can prove that, even considering vicarious liability, the senior management, regional management, and even store managers (given the size of some of these super-walmarts) have a policy or agenda to do anything…IT’s TOO BIG.

    But since I always root for the home team, feel bad for the ladies. This is the END of Discrimination lawsuits. You might as well just get rid of discrimination laws. They are silly anyway. No one can really prove it.

    1. What? Individuals can still show direct discrimination. If it has an impact on anything, it’s disparate impact cases, but even then, you just have to pick a more humble set of clients.

  29. One thing to say for H&R.
    The SCOTUS story has more comments than the death of an original Jackass.

    Even if the comments are mainly about naked Russian chicks and such.

  30. Looks like a win for big corporations. Do you believe the law suit is justified?



  31. I think anyone even passingly familiar with the facts of the case beyond “Grr! Wal-Mart! Yay, women! Grr! Discrimination” would agree that this case was rightly decided.

    1. Pete, you just summed up every liberal anti-capitalist/cheerlead for the state argument. Kudo to you.

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