The Hazards of Dukes: The Substantive Consequences of a Procedural Decision, by Natalie Bucciarelli Pedersen—aside from having quite possibly the best title of any article, ever—is an important and informative reminder that one of the most newsworthy and talked about cases of the past decade, Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), has import and significance beyond the realm of class action lawsuits. Indeed, as Professor Pedersen makes clear, the Supreme Court “not only reversed the grant of class certification to one of the largest employment discrimination classes ever, but also indelibly altered the substance of employment discrimination law.” (P. 124.) The major contribution of this article is its original examination of the impact of the language and law in the Dukes opinion on substantive Title VII jurisprudence as it applies to the adjudication of disparate impact cases, systemic disparate treatment cases, and implicit bias cases that utilize social framework evidence.
As Professor Pedersen recounts, in 2011, the Supreme Court reversed a grant of class certification to some 1.5 million female Wal-Mart employees who claimed that they were victims of sex discrimination because of inequalities related to the employer’s salary, promotion, and management track policies and procedures. The policies and practices alleged, however, were not explicitly discriminatory. In making out their disparate impact claim, the plaintiffs pointed to the delegation of decision-making discretion to local managers when it came to pay and promotion decisions. In making out their disparate treatment claim, the plaintiffs alleged that despite knowing of the disparate impact conferred upon women by the unfettered discretion afforded to local managers, Wal-Mart intentionally failed to remedy the situation. The District Court certified a class of at least 1.5 million women, and the Ninth Circuit agreed that the class certification requirements set forth in Federal Rule of Civil Procedure 23(a) had been met. The Supreme Court, however, reversed the Ninth Circuit’s holding that class certification had been appropriate in the case, finding that the plaintiffs did not “depend upon a common contention.” (P. 128.)
Professor Pedersen departs from many other scholars’ analyses of Dukes by looking at the effect of the opinion on substantive employment discrimination law, and not on the future or mechanics of class action lawsuits. For example, she contends that Dukes will affect cases brought under a disparate impact theory to protest subjective decision-making practices. Specifically, she notes that whereas the Supreme Court in its previous Watson decision had been receptive to the idea that a subjective selection or decision-making system could be the basis of a disparate impact claim, the Dukes Court “noting how the resolution of the class certification almost necessarily overlaps with the issues of the merits of the case, found that commonality does not exist because the plaintiffs’ claims ‘must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor.’” (P. 131.) The Dukes Court, according to Professor Pedersen, acknowledged that a general policy of discrimination could form the factual predicate for a viable claim, but noted that the policy needed to “manifest itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decision making processes.” (P. 131.)
The article thus trumpets the impact of Dukes upon the substantive law of employment discrimination, starting with its effect on disparate impact. Professor Pedersen questions whether, in light of the Court’s “dismantl[ing of] the Watson precedent,” (P. 132), how any plaintiffs could “ever successfully argue that the delegation of subjective authority to supervisors has a disparate impact on a particular class of employees?” (P. 132.) Indeed, the treatment of the commonality element in Dukes makes one wonder whether employing disparate impact theory in cases in which unregulated subjective decision-making discretion is challenged will be unwieldy and untenable. Moreover, as the article points out, subjective bias is more likely to evade capture by existing legal frameworks when plaintiffs are held to impossibly high standards of articulating “a more specific practice than this delegation of authority.” (P. 134.)
The article also points to effects of the Dukes decision on systemic disparate treatment cases, noting that the Supreme Court in Dukes looks to have heightened the burden imposed on systemic disparate treatment plaintiffs, departing from the language from Teamsters that is conventionally invoked: “The Court demanded a policy that led to a common injury—seemingly ignoring the fact that the language of Title VII as interpreted in Teamsters calls for either a policy or a practice of discrimination. . . . The key to a pattern or practice of discrimination was never a policy of discrimination, but rather the regular employ of discriminatory intent. Dukes has changed this.” (P. 136-37.)
Finally, the article recites, Dukes reflects a much less receptive attitude of courts to social framework evidence, which consists of the results of social science research employed to create a context for aiding in the finding of a case’s factual issues. Referring to the Dukes Court’s “quick, but excoriating, dismissal of the social framework evidence,” the article concludes that the Court appeared to refuse to be receptive to any social framework evidence other than that which was restricted to “general knowledge and background without any application or linkage by a testifying expert to the facts of the case.” (P. 141.) Such a move, the article observes, “has staggering implications for employment discrimination cases,” (P. 141), because implicit bias cases tend to depend upon establishing a nexus between social psychology and specific employment practices.
The implications of Dukes for class action lawsuits have been discussed at length, but this article thoughtfully contemplates its ramifications for substantive employment discrimination law. It is good to see scholarship that is vigilant and that departs from what so many others are doing. This piece is observant and insightful, and it will be great to see what its author produces next as she monitors the legal landscape in this ever-changing field.