Epilogue: Dukes v. Wal-Mart

The dust is still settling after the U.S. Supreme Court handed down its decision in the Dukes v. Wal-Mart case. In its decision, the Court held that 1.5 million women could not be certified as a class against the retailer.

Federal Civil Procedure Rule 23(a) requires  that any party seeking class action certification must demonstrate that:

“(1) the class is so numerous that joinder of all members is impracticable,“(2) there are questions of law or fact common to the class, “(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and “(4) the representative parties will fairly and adequately protect the interests of the class”

In the Dukes case, the lower district (trial) and appellate courts found that the evidence marshaled by the plaintiffs were indeed sufficient to allow certifying the 1.5 million female Wal-Mart employees as a class under the rules.

The evidence used to persuade the lower courts included statistical data that suggested differences in pay between men and women, anecdotal testimony from witnesses who alleged gender-based discrimination, and the social framework analysis of the plaintiff’s expert sociology witness. The social framework analysis was discussed in greater depth in a prior post on this blog.

The U.S. Supreme Court, however, held that this evidence was insufficient to meet the commonality requirement of Federal Rule 23(a). Under the Court’s analysis of relevant precedent, the Court required evidence of a systematic practice, or corporate policy that would trigger a legal issue common to all  1.5 million women in the class. The only evidence that the Court found addressed this requirement was the social framework analysis offered by the plaintiff’s expert, Dr. William Bielby. The Supreme Court, however, found the use of a social framework analysis was insufficient to demonstrate typicality. The Court said:

“Relying on “social framework” analysis, Bielby testified that Wal-Mart has a “strong corporate culture,” that makes it “‘vulnerable’” to “gender bias.” He could not, however, “determine with any specificity how regularly stereotypes play a meaningful role in employment decisions at Wal-Mart.” …

“The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of allowing discretion by local supervisors over employment matters. On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices.”

The Court then discussed that the typicality requirement is a threshold issue that can impact the results of statistics that suggest gender based discrimination.

As a practical matter, it is unlikely that any plaintiffs will be able to certify a nationwide class against a major corporation in discrimination cases unless the plaintiffs can show with sufficient evidence that typicality of harm or injury arises from pervasive managerial behavior, such as an identifiable corporate policy, or from observable and uniform practice.

On the other hand, broad and unidentifiable factors, such as tacit managerially sanctioned social norms, are not likely to satisfy the typicality requirement. In the Dukes case, the Supreme Court disregarded the theory that something as real, yet broadly conceived, as corporate culture can be used to legally establish typicality.

As discussed in the Court opinion’s syllabus:

“Respondents’ only evidence of a general discrimination policy was a sociologist’s analysis asserting that Wal-Mart’s corporate culture made it vulnerable to gender bias. But because he could not estimate what percent of Wal-Mart employment decisions might be determined by stereotypical thinking, his testimony was worlds away from “significant proof” that Wal-Mart “operated under a general policy of discrimination.”

So, even if there is some indication of a corporate culture and statistical evidence pointing to a gender-based pay gap, the courts are likely to require  direct evidence of an actual company practice that fosters the discrimination.

Supreme Court Issues Wal-Mart vs. Dukes Ruling

Today, the Supreme Court issued its much anticipated Wal-Mart v. Dukes ruling. In a few days, I’ll post a more in depth analysis of the decision, particularly as it applies to the Court’s dismissal of the plaintiffs’ central sociological theory, which alleged that Wal-Mart’s corporate culture promoted employment discrimination. The Court ultimately held that this theory was procedurally insufficient to certify 1.5 million women in a class action.

Take a look at the Court’s opinion here.

Betty Dukes v. Wal-Mart – Part II

In the prior post, I mentioned the case of Dukes vs. Wal-Mart, where the trial and appellate courts certified more than a million women in a class-action lawsuit alleging employment discrimination at Wal-Mart stores across the United States. If you are the defendant corporation, you now face the scenario in which millions of individuals allege that they suffered similar harm because of systematic employment practices at your organization.  But, how does a plaintiff offer evidence that these disparate individuals located all across the nation indeed faced the same type of harm because of the actions of thousands of different Wal-Mart managers? The ideal way is to interview every single manager and all the allegedly harmed employees. That, however, would be too costly and impractical. Instead, a plaintiff’s attorney hired an expert witness trained in social science research.

In the Dukes vs. Wal-Mart case, the plaintiffs hired the renowned sociology professor William T. Bielby to perform what is known as a social framework analysis. From what I can gather by reading the expert report, this type of analysis surveys the scientific literature on gender-based discrimination to find the organizational and situational attributes that are likely to give rise to cases of gender stereotyping and discrimination in the workplace.  Once the literature is surveyed, the theoretical propositions about discrimination and stereotyping are applied to the case at hand, i.e. Wal-Mart’s employment practices and routines.In this way, the expert made an informed assertion based on primary evidence related to the case by interviewing managers, reading memos, and analyzing policy manuals, organizational charts and statistics that may suggest unlawful gender-based differences in pay and promotion due to systemic employment practices.

The defense, in this case, vigorously attacked the expert witness’ methodology, claiming that it was speculation, and was never tested to show rigorous causality. An unreasonable inference would be required, the defense argued, to conclude that the social framework analysis actually shows Wal-Mart’s employment practices lead to gender based discrimination. To establish causation, the plaintiff’s expert would have to survey managers to find out if there is a causal link between Wal-Mart’s practices and the managers’ behavior towards women. This, however, was not the case and the plaintiff readily concluded that the purpose of social framework analysis was not to establish actual causation. The plaintiff defended the method by saying:

“Wal-Mart’s insistence that Dr . Bielby quantify the effect of stereotypes is similarly lacking in merit . In his deposition, Dr . Bielby readily admitted that he did not calculate how often stereotypes affect decision-making at Wal-Mart. This is not a flaw that makes his opinion unreliable. Dr. Bielby used social framework analysis to show that Wal-Mart created a system that increased the likelihood of stereotyping, and which provides an explanation for the statistical disparity between men and women in pay and promotions.” (Plaintiffs Opposition to Defendant Wal-Mart Stores, Inc.’s Daubert Motion, to Strike Declaration, Opinion and Testimony of Plaintiffs’ Expert William T. Bielby, Ph.D., at.11).

The plaintiffs also argued that evidence standards required that the expert’s testimony had to be admitted to argue that the class of more than a million women should be certified.They stated:

“Because the Court acts as the gatekeeper, not the fact-finder, the Court is not charged with deciding whether the expert’s opinion is factually correct .’ See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994) (stating that plaintiffs “do not have to demonstrate to the judge by a preponderance of the evidence that the assessments of their experts are correct, they only have to demonstrate by a preponderance of evidence that their
opinions are reliable” and that “[t]he evidentiary requirement of reliability is lower than the merits standard of correctness .”). (Plaintiffs Opposition to Defendant Wal-Mart Stores, Inc.’s Daubert Motion, to Strike Declaration, Opinion and Testimony of Plaintiffs’ Expert William T. bielby, Ph.D., at.1-2).

As indicated by the plaintiffs, it ultimately is the responsibility of a jury, and not a judge, to determine the credibility of the expert’s social framework analysis, which suggests, but does not causally establish that Wal-Mart’s practices create a likelihood of gender discrimination. If the expert testimony is admitted and the judge finds it is reliable, the judge may use it, however, as he did in this case, to certify the class and allow the more than one million women to proceed as combined plaintiffs. In this case, the class amounted to a record-breaking number of plaintiffs included in one case.

The U.S. Supreme Court is scheduled to hear Dukes vs. Wal-Mart in the 2011 term.

Betty Dukes v. Wal-Mart – Part I

Can 1.5 million women stand together in a class-action suit to sue Wal-Mart for employment discrimination?

That’s the narrow legal issue that the U.S. Supreme Court recently agreed to decide by reviewing the Ninth Circuit appellate case Betty Dukes v. Wal-Mart. This specific issue gets to the heart of what is known as a class-action lawsuit, which allows bundling the complaints of similarly situated plaintiffs into one lawsuit. In this case, a woman named Betty Dukes has raised allegations the lower trial and appellate Courts found were shared by more than 1 million female Wal-Mart employees. Ms. Dukes and the the other plaintiffs in the suit allege that women who work for Wal-Mart:

(1) are paid less than men in comparable positions, despite having higher performance ratings and greater seniority; and

(2) receive fewer — and wait longer for — promotions to in-store management positions than men.

Whether these plaintiffs were appropriately grouped together and certified as a “class” by the initial trial court in California is the issue that will be examined in the Supreme Court’s pending review. This will be a very important decision that will impact the viability of other class-action lawsuits, and by extension, the liability that American corporations may face in a wide range of future class action lawsuits.

In several upcoming posts, I will examine another issue that is under-analyzed, yet equally important and fascinating: I’ll discuss and analyze the role of expert witnesses who rely on social science research to support allegations made by plaintiffs. These experts are an important source of information that juries rely on to help determine factual matters that determine whether plaintiff wins or loses. For example, a central claim made by the plaintiffs in the Dukes vs. Wal-Mart case is that:

“Wal-Mart’s strong, centralized structure fosters or facilitates gender stereotyping and discrimination, that the policies and practices underlying this discriminatory treatment are consistent throughout Wal-Mart stores, and that this discrimination is common to all women who work or have worked in Wal-Mart stores.” (Dukes v. Wal-Mart Stores, Inc., 509 F.3d 1168, at 6147 (2010).

In the next post, I’ll discuss the methods and social science literature that Dr. William T. Bielby, the plaintiff’s expert in the Dukes v. Wal-Mart case, relied on to determine that in his opinion: “Personnel policy and practice at Wal-Mart as implemented in the field has features known to be vulnerable to gender bias”.

Dr. Bielby is a sociology professor, and his expert determination based on a review of social science literature was admissible in court, despite some interesting challenges made by the defendant to discredit the evidence and testimony, which I also will examine in an upcoming post.