Learning from Wal-Mart

Abstract

This article considers the landmark gender discrimination class action, Dukes v. Wal-Mart Stores, both as a prototype of an emerging litigation strategy and also as a case that is entirely unique. As part of a growing trend of gender discrimination class claims, Dukes has the potential to push the boundaries of the law to confront the pervasive, tenacious stereotypes that continue to limit women's workplace opportunities. The plaintiffs' arguments - both the narrative of discrimination their evidence set out and the legal strategies they chose - are strikingly similar to claims that have been made in many class action lawsuits over the past decade. It is a strategy for litigation that challenges both the company-wide policy to delegate pay and promotion decision-making authority and the individual subjective decisions of managers throughout the country. The first challenge - to Wal-Mart's centralized policy choices - puts this case squarely within doctrinal debates about Federal Rule of Civil Procedure 23 that have dominated class litigation for close to a decade. The second aspect of this litigation - its assault on the subjective decisions made as a consequence of Wal-Mart's delegation - raises a question that has lurked behind Title VII litigation for years: What responsibility should employers take for gender stereotypes and biases that pervade United States culture when the effects of those cultural norms are felt at work? By challenging the aggregate consequences of multiple individual decisions, this article argues, this type of gender discrimination class litigation takes an extremely important step in efforts to root out gender inequalities at work. Finally, the piece considers the ways in which Dukes v. Wal-Mart, although it is part of a trend of similar litigation, has unique importance because the defendant is Wal-Mart, and in particular because of Wal-Mart's extraordinary market power and its consequent influence on other employers' practices, and the company's remarkably strong corporate culture.