WAL-MART v. DUKES
Betty Dukes, a Wal-Mart "greeter" at a Pittsburg, Calif., store, and five other women filed a class-action lawsuit in which they alleged that the company's nationwide policies resulted in lower pay for women than men in comparable positions and longer wait for management promotions than men. The certified class, which in 2001 was estimated to comprise more than 1.5 million women, includes all women employed by Wal-Mart nationwide at any time after December 26, 1998, making this the largest class action lawsuit in U.S. history. Wal-Mart has argued that the court should require employees to file on an individual basis, contending that class actions of this size – formed under Rule 23(b) of the federal rules of civil procedure — are inherently unmanageable and unduly costly. The U.S. Court of Appeals for the Ninth Circuit has three times upheld the class certification.
- Brief of Dri—the Voice of the Defense Bar as Amicus Curiae In Support of Petitioner
- Brief of Amici Curiae, Law And Economics Professors In Support of Respondents
- Brief of the Association of Global Automakers, Inc. as Amicus Curiae In Support of Petitioner
- Brief of International Association of Defense Counsel as Amicus Curiae In Support of Petitioner
- Brief Amicus Curiae of Pacific Legal Foundation In Support of Petitioner
- Brief of Securities Industry And Financial Markets Association as Amicus Curiae In Support of Petitioner
- Brief of the Chamber of Commerce of the United States of America as Amicus Curiae In Support of Petitioner
- Brief of Washington Legal Foundation as Amicus Curiae In Support of Petitioner
- Brief for Respondents
- Reply Brief for Petitioner
Can the small group of women who began the case represent a gigantic class of women?
Legal provision: Federal Rules of Civil Procedure 23(a) and (b)(2)
No. The Supreme Court reversed the lower court order in a unanimous opinion by Justice Antonin Scalia. "Here, proof of commonality necessarily overlaps with respondents' merits contention that Wal-Mart engages in a pattern or practice of discrimination. The crux of a Title VII inquiry is 'the reason for a particular employment decision,' and respondents wish to sue for millions of employment decisions at once," Scalia wrote. "Without some glue holding together the alleged reasons for those decisions, it will be impossible to say that examination of all the class members' claims will produce a common answer to the crucial discrimination question." Justice Ruth Bader Ginsburg concurred in part and dissented in part, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan. "Whether the class the plaintiffs describe meets the specific requirements of Rule 23(b)(3) is not before the Court, and I would reserve that matter for consideration and decision on remand," Ginsburg wrote.
Opinion of the Court
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SUPREME COURT OF THE UNITED STATES
WAL-MART STORES, INC., PETITIONER v.
BETTY DUKES ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 20, 2011]
JUSTICE SCALIA delivered the opinion of the Court.
We are presented with one of the most expansive class actions ever. The District Court and the Court of Appeals approved the certification of a class comprising about one and a half million plaintiffs, current and former female employees of petitioner Wal-Mart who allege that the discretion exercised by their local supervisors over pay and promotion matters violates Title VII by discriminating against women. In addition to injunctive and declaratory relief, the plaintiffs seek an award of backpay. We consider whether the certification of the plaintiff class was consistent with Federal Rules of Civil Procedure 23(a) and (b)(2).
Petitioner Wal-Mart is the Nation’s largest private employer. It operates four types of retail stores throughout the country: Discount Stores, Supercenters, Neighborhood Markets, and Sam’s Clubs. Those stores are divided into seven nationwide divisions, which in turn comprise 41 regions of 80 to 85 stores apiece. Each store has between 40 and 53 separate departments and 80 to 500 staff positions. In all, Wal-Mart operates approximately 3,400 stores and employs more than one million people.
Pay and promotion decisions at Wal-Mart are generally committed to local managers’ broad discretion, which is exercised “in a largely subjective manner.” 222 F. R. D. 137, 145 (ND Cal. 2004). Local store managers may increase the wages of hourly employees (within limits) with only limited corporate oversight. As for salaried employees, such as store managers and their deputies, higher corporate authorities have discretion to set their pay within preestablished ranges.
Promotions work in a similar fashion. Wal-Mart permits store managers to apply their own subjective criteria when selecting candidates as “support managers,” which is the first step on the path to management. Admission to Wal-Mart’s management training program, however, does require that a candidate meet certain objective criteria, including an above-average performance rating, at least one year’s tenure in the applicant’s current position, and a willingness to relocate. But except for those requirements, regional and district managers have discretion to use their own judgment when selecting candidates for management training. Promotion to higher office—e.g., assistant manager, co-manager, or store manager—is similarly at the discretion of the employee’s superiors after prescribed objective factors are satisfied.
The named plaintiffs in this lawsuit, representing the 1.5 million members of the certified class, are three current or former Wal-Mart employees who allege that the company discriminated against them on the basis of their sex by denying them equal pay or promotions, in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e–1 et seq.1
Betty Dukes began working at a Pittsburgh, California, Wal-Mart in 1994. She started as a cashier, but later sought and received a promotion to customer service manager. After a series of disciplinary violations, however, Dukes was demoted back to cashier and then to greeter. Dukes concedes she violated company policy, but contends that the disciplinary actions were in fact retaliation for invoking internal complaint procedures and that male employees have not been disciplined for similar infractions. Dukes also claims two male greeters in the Pittsburgh store are paid more than she is.
Christine Kwapnoski has worked at Sam’s Club stores in Missouri and California for most of her adult life. She has held a number of positions, including a supervisory position. She claims that a male manager yelled at her frequently and screamed at female employees, but not at men. The manager in question “told her to ‘doll up,’ to wear some makeup, and to dress a little better.” App. 1003a.
The final named plaintiff, Edith Arana, worked at a Wal-Mart store in Duarte, California, from 1995 to 2001. In 2000, she approached the store manager on more than one occasion about management training, but was brushed off. Arana concluded she was being denied opportunity for advancement because of her sex. She initiated internal complaint procedures, whereupon she was told to apply directly to the district manager if she thought her store manager was being unfair. Arana, however, decided against that and never applied for management training again. In 2001, she was fired for failure to comply with Wal-Mart’s timekeeping policy.
These plaintiffs, respondents here, do not allege that Wal-Mart has any express corporate policy against the advancement of women. Rather, they claim that their local managers’ discretion over pay and promotions is exercised disproportionately in favor of men, leading to an unlawful disparate impact on female employees, see 42 U. S. C. §2000e–2(k). And, respondents say, because WalMart is aware of this effect, its refusal to cabin its managers’ authority amounts to disparate treatment, see §2000e–2(a). Their complaint seeks injunctive and declaratory relief, punitive damages, and backpay. It does not ask for compensatory damages.
Importantly for our purposes, respondents claim that the discrimination to which they have been subjected is common to all Wal-Mart’s female employees. The basic theory of their case is that a strong and uniform “corporate culture” permits bias against women to infect, perhaps subconsciously, the discretionary decisionmaking of each one of Wal-Mart’s thousands of managers—thereby making every woman at the company the victim of one common discriminatory practice. Respondents therefore wish to litigate the Title VII claims of all female employees at Wal-Mart’s stores in a nationwide class action.
Class certification is governed by Federal Rule of Civil Procedure 23. Under Rule 23(a), the party seeking certification must demonstrate, first, 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” (paragraph breaks added). Second, the proposed class must satisfy at least one of the three requirements listed in Rule 23(b). Respondents rely on Rule 23(b)(2), which applies when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”2
Invoking these provisions, respondents moved the District Court to certify a plaintiff class consisting of “ ‘[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions policies and practices.’ ” 222 F. R. D., at 141–142 (quoting Plaintiff ’s Motion for Class Certification in case No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 37). As evidence that there were indeed “questions of law or fact common to” all the women of Wal-Mart, as Rule 23(a)(2) requires, respondents relied chiefly on three forms of proof: statistical evidence about pay and promotion disparities between men and women at the company, anecdotal reports of discrimination from about 120 of Wal-Mart’s female employees, and the testimony of a sociologist, Dr. William Bielby, who conducted a “social framework analysis” of Wal-Mart’s “culture” and personnel practices, and concluded that the company was “vulnerable” to gender discrimination. 603 F. 3d 571, 601 (CA9 2010) (en banc).
Wal-Mart unsuccessfully moved to strike much of this evidence. It also offered its own countervailing statistical and other proof in an effort to defeat Rule 23(a)’s requirements of commonality, typicality, and adequate representation. Wal-Mart further contended that respondents’ monetary claims for backpay could not be certified under Rule 23(b)(2), first because that Rule refers only to injunctive and declaratory relief, and second because the backpay claims could not be manageably tried as a class without depriving Wal-Mart of its right to present certain statutory defenses. With one limitation not relevant here, the District Court granted respondents’ motion and certified their proposed class.3
A divided en banc Court of Appeals substantially affirmed the District Court’s certification order. 603 F. 3d 571. The majority concluded that respondents’ evidence of commonality was sufficient to “raise the common question whether Wal-Mart’s female employees nationwide were subjected to a single set of corporate policies (not merely a number of independent discriminatory acts) that may have worked to unlawfully discriminate against them in violation of Title VII.” Id., at 612 (emphasis deleted). It also agreed with the District Court that the named plaintiffs’ claims were sufficiently typical of the class as a whole to satisfy Rule 23(a)(3), and that they could serve as adequate class representatives, see Rule 23(a)(4). Id., at 614– 615. With respect to the Rule 23(b)(2) question, the Ninth Circuit held that respondents’ backpay claims could be certified as part of a (b)(2) class because they did not “predominat[e]” over the requests for declaratory and injunctive relief, meaning they were not “superior in strength, influence, or authority” to the nonmonetary claims. Id., at 616 (internal quotation marks omitted).4
Finally, the Court of Appeals determined that the action could be manageably tried as a class action because the District Court could adopt the approach the Ninth Circuit approved in Hilao v. Estate of Marcos, 103 F. 3d 767, 782– 787 (1996). There compensatory damages for some 9,541 class members were calculated by selecting 137 claims at random, referring those claims to a special master for valuation, and then extrapolating the validity and value of the untested claims from the sample set. See 603 F. 3d, at 625–626. The Court of Appeals “s[aw] no reason why a similar procedure to that used in Hilao could not be employed in this case.” Id., at 627. It would allow Wal-Mart “to present individual defenses in the randomly selected ‘sample cases,’ thus revealing the approximate percentage of class members whose unequal pay or nonpromotion was due to something other than gender discrimination.” Ibid., n. 56 (emphasis deleted). We granted certiorari. 562 U. S. ___ (2010).
The class action is “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Califano v. Yamasaki, 442 U. S. 682, 700–701 (1979). In order to justify a departure from that rule, “a class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” East Tex. Motor Freight System, Inc. v. Rodriguez, 431 U. S. 395, 403 (1977) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 216 (1974)). Rule 23(a) ensures that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate. The Rule’s four requirements—numerosity, commonality, typicality, and adequate representation—“effectively ‘limit the class claims to those fairly encompassed by the named plaintiff ’s claims.’ ” General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, 156 (1982) (quoting General Telephone Co. of Northwest v. EEOC, 446 U. S. 318, 330 (1980)).
The crux of this case is commonality—the rule requiring a plaintiff to show that “there are questions of law or fact common to the class.” Rule 23(a)(2).5 That language is easy to misread, since “[a]ny competently crafted class complaint literally raises common ‘questions.’ ” Nagareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 131–132 (2009). For example: Do all of us plaintiffs indeed work for Wal-Mart? Do our managers have discretion over pay? Is that an unlawful employment practice? What remedies should we get? Reciting these questions is not sufficient to obtain class certification. Commonality requires the plaintiff to demonstrate that the class members “have suffered the same injury,” Falcon, supra, at 157. This does not mean merely that they have all suffered a violation of the same provision of law. Title VII, for example, can be violated in many ways—by intentional discrimination, or by hiring and promotion criteria that result in disparate impact, and by the use of these practices on the part of many different superiors in a single company. Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparateimpact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. “What matters to class certification . . . is not the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.” Nagareda, supra, at 132.
Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. We recognized in Falcon that “sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question,” 457 U. S., at 160, and that certification is proper only if “the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied,” id., at 161; see id., at 160 (“[A]ctual, not presumed, conformance with Rule 23(a) remains . . . indispensable”). Frequently that “rigorous analysis” will entail some overlap with the merits of the plaintiff ’s underlying claim. That cannot be helped. “ ‘[T]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff ’s cause of action.’ ” Falcon, supra, at 160 (quoting Coopers & Lybrand v. Livesay, 437 U. S. 463, 469 (1978); some internal quotation marks omitted).6 Nor is there anything unusual about that consequence: The necessity of touching aspects of the merits in order to resolve preliminary matters, e.g., jurisdiction and venue, is a familiar feature of litigation. See Szabo v. Bridgeport Machines, Inc., 249 F. 3d 672, 676–677 (CA7 2001) (Easterbrook, J.).
In this case, proof of commonality necessarily overlaps with respondents’ merits contention that Wal-Mart engages in a pattern or practice of discrimination.7 That is so because, in resolving an individual’s Title VII claim, the crux of the inquiry is “the reason for a particular employment decision,” Cooper v. Federal Reserve Bank of Richmond, 467 U. S. 867, 876 (1984). Here respondents wish to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.
This Court’s opinion in Falcon describes how the commonality issue must be approached. There an employee who claimed that he was deliberately denied a promotion on account of race obtained certification of a class comprising all employees wrongfully denied promotions and all applicants wrongfully denied jobs. 457 U. S., at 152. We rejected that composite class for lack of commonality and typicality, explaining: “Conceptually, there is a wide gap between (a) an individual’s claim that he has been denied a promotion [or higher pay] on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual’s claim and the class claim will share common questions of law or fact and that the individual’s claim will be typical of the class claims.” Id., at 157–158. Falcon suggested two ways in which that conceptual gap might be bridged. First, if the employer “used a biased testing procedure to evaluate both applicants for employment and incumbent employees, a class action on behalf of every applicant or employee who might have been prejudiced by the test clearly would satisfy the commonality and typicality requirements of Rule 23(a).” Id., at 159, n. 15. Second, “[s]ignificant proof that an employer operated under a general policy of discrimination conceivably could justify a class of both applicants and employees if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decisionmaking processes.” Ibid. We think that statement precisely describes respondents’ burden in this case. The first manner of bridging the gap obviously has no application here; Wal-Mart has no testing procedure or other companywide evaluation method that can be charged with bias. The whole point of permitting discretionary decisionmaking is to avoid evaluating employees under a common standard.
The second manner of bridging the gap requires “significant proof ” that Wal-Mart “operated under a general policy of discrimination.” That is entirely absent here. Wal-Mart’s announced policy forbids sex discrimination, see App. 1567a–1596a, and as the District Court recognized the company imposes penalties for denials of equal employment opportunity, 222 F. R. D., at 154. The only evidence of a “general policy of discrimination” respondents produced was the testimony of Dr. William Bielby, their sociological expert. Relying on “social framework” analysis, Bielby testified that Wal-Mart has a “strong corporate culture,” that makes it “ ‘vulnerable’ ” to “gender bias.” Id., at 152. He could not, however, “determine with any specificity how regularly stereotypes play a meaningful role in employment decisions at Wal-Mart. At his deposition . . . Dr. Bielby conceded that he could not calculate whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” 222 F. R. D. 189, 192 (ND Cal. 2004). The parties dispute whether Bielby’s testimony even met the standards for the admission of expert testimony under Federal Rule of Civil Procedure 702 and our Daubert case, see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993).8 The District Court concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings. 222 F. R. D., at 191. We doubt that is so, but even if properly considered, Bielby’s testimony does nothing to advance respondents’ case. “[W]hether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking” is the essential question on which respondents’ theory of commonality depends. If Bielby admittedly has no answer to that question, we can safely disregard what he has to say. It is worlds away from “significant proof ” that Wal-Mart “operated under a general policy of discrimination.”
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. It is also a very common and presumptively reasonable way of doing business—one that we have said “should itself raise no inference of discriminatory conduct,” Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 990 (1988).
To be sure, we have recognized that, “in appropriate cases,” giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory—since “an employer’s undisciplined system of subjective decisionmaking [can have] precisely the same effects as a system pervaded by impermissible intentional discrimination.” Id., at 990–991. But the recognition that this type of Title VII claim “can” exist does not lead to the conclusion that every employee in a company using a system of discretion has such a claim in common. To the contrary, left to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all. Others may choose to reward various attributes that produce disparate impact— such as scores on general aptitude tests or educational achievements, see Griggs v. Duke Power Co., 401 U. S. 424, 431–432 (1971). And still other managers may be guilty of intentional discrimination that produces a sexbased disparity. In such a company, demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s. A party seeking to certify a nationwide class will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions.
Respondents have not identified a common mode of exercising discretion that pervades the entire company—aside from their reliance on Dr. Bielby’s social frameworks analysis that we have rejected. In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction. Respondents attempt to make that showing by means of statistical and anecdotal evidence, but their evidence falls well short.
The statistical evidence consists primarily of regression analyses performed by Dr. Richard Drogin, a statistician, and Dr. Marc Bendick, a labor economist. Drogin conducted his analysis region-by-region, comparing the number of women promoted into management positions with the percentage of women in the available pool of hourly workers. After considering regional and national data, Drogin concluded that “there are statistically significant disparities between men and women at Wal-Mart . . . [and] these disparities . . . can be explained only by gender discrimination.” 603 F. 3d, at 604 (internal quotation marks omitted). Bendick compared work-force data from Wal-Mart and competitive retailers and concluded that Wal-Mart “promotes a lower percentage of women than its competitors.” Ibid.
Even if they are taken at face value, these studies are insufficient to establish that respondents’ theory can be proved on a classwide basis. In Falcon, we held that one named plaintiff ’s experience of discrimination was insufficient to infer that “discriminatory treatment is typical of [the employer’s employment] practices.” 457 U. S., at 158. A similar failure of inference arises here. As Judge Ikuta observed in her dissent, “[i]nformation about disparities at the regional and national level does not establish the existence of disparities at individual stores, let alone raise the inference that a company-wide policy of discrimination is implemented by discretionary decisions at the store and district level.” 603 F. 3d, at 637. A regional pay disparity, for example, may be attributable to only a small set of Wal-Mart stores, and cannot by itself establish the uniform, store-by-store disparity upon which the plaintiffs’ theory of commonality depends.
There is another, more fundamental, respect in which respondents’ statistical proof fails. Even if it established (as it does not) a pay or promotion pattern that differs from the nationwide figures or the regional figures in all of Wal-Mart’s 3,400 stores, that would still not demonstrate that commonality of issue exists. Some managers will claim that the availability of women, or qualified women, or interested women, in their stores’ area does not mirror the national or regional statistics. And almost all of them will claim to have been applying some sex-neutral, performance-based criteria—whose nature and effects will differ from store to store. In the landmark case of ours which held that giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory, the plurality opinion conditioned that holding on the corollary that merely proving that the discretionary system has produced a racial or sexual disparity is not enough. “[T]he plaintiff must begin by identifying the specific employment practice that is challenged.” Watson, 487 U. S., at 994; accord, Wards Cove Packing Co. v. Atonio, 490 U. S. 642, 656 (1989) (approving that statement), superseded by statute on other grounds, 42 U. S. C. §2000e–2(k). That is all the more necessary when a class of plaintiffs is sought to be certified. Other than the bare existence of delegated discretion, respondents have identified no “specific employment practice”—much less one that ties all their 1.5 million claims together. Merely showing that Wal-Mart’s policy of discretion has produced an overall sex-based disparity does not suffice.
Respondents’ anecdotal evidence suffers from the same defects, and in addition is too weak to raise any inference that all the individual, discretionary personnel decisions are discriminatory. In Teamsters v. United States, 431 U. S. 324 (1977), in addition to substantial statistical evidence of company-wide discrimination, the Government (as plaintiff) produced about 40 specific accounts of racial discrimination from particular individuals. See id., at 338. That number was significant because the company involved had only 6,472 employees, of whom 571 were minorities, id., at 337, and the class itself consisted of around 334 persons, United States v. T.I.M.E.-D. C., Inc., 517 F. 2d 299, 308 (CA5 1975), overruled on other grounds, Teamsters, supra. The 40 anecdotes thus represented roughly one account for every eight members of the class. Moreover, the Court of Appeals noted that the anecdotes came from individuals “spread throughout” the company who “for the most part” worked at the company’s operational centers that employed the largest numbers of the class members. 517 F. 2d, at 315, and n. 30. Here, by contrast, respondents filed some 120 affidavits reporting experiences of discrimination—about 1 for every 12,500 class members—relating to only some 235 out of WalMart’s 3,400 stores. 603 F. 3d, at 634 (Ikuta, J., dissenting). More than half of these reports are concentrated in only six States (Alabama, California, Florida, Missouri, Texas, and Wisconsin); half of all States have only one or two anecdotes; and 14 States have no anecdotes about Wal-Mart’s operations at all. Id., at 634–635, and n. 10. Even if every single one of these accounts is true, that would not demonstrate that the entire company “operate[s] under a general policy of discrimination,” Falcon, supra, at 159, n. 15, which is what respondents must show to certify a companywide class.9
The dissent misunderstands the nature of the foregoing analysis. It criticizes our focus on the dissimilarities between the putative class members on the ground that we have “blend[ed]” Rule 23(a)(2)’s commonality requirement with Rule 23(b)(3)’s inquiry into whether common questions “predominate” over individual ones. See post, at 8–10 (GINSBURG, J., concurring in part and dissenting in part). That is not so. We quite agree that for purposes of Rule 23(a)(2) “ ‘[e]ven a single [common] question’ ” will do, post, at 10, n. 9 (quoting Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149, 176, n. 110 (2003)). We consider dissimilarities not in order to determine (as Rule 23(b)(3) requires) whether common questions predominate, but in order to determine (as Rule 23(a)(2) requires) whether there is “[e]ven a single [common] question.” And there is not here. Because respondents provide no convincing proof of a companywide discriminatory pay and promotion policy, we have concluded that they have not established the existence of any common question.10
In sum, we agree with Chief Judge Kozinski that the members of the class: “held a multitude of different jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed. . . . Some thrived while others did poorly. They have little in common but their sex and this lawsuit.” 603 F. 3d, at 652 (dissenting opinion).
We also conclude that respondents’ claims for backpay were improperly certified under Federal Rule of Civil Procedure 23(b)(2). Our opinion in Ticor Title Ins. Co. v. Brown, 511 U. S. 117, 121 (1994) (per curiam) expressed serious doubt about whether claims for monetary relief may be certified under that provision. We now hold that they may not, at least where (as here) the monetary relief is not incidental to the injunctive or declaratory relief.
Rule 23(b)(2) allows class treatment when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” One possible reading of this provision is that it applies only to requests for such injunctive or declaratory relief and does not authorize the class certification of monetary claims at all. We need not reach that broader question in this case, because we think that, at a minimum, claims for individualized relief (like the backpay at issue here) do not satisfy the Rule. The key to the (b)(2) class is “the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Nagareda, 84 N. Y. U. L. Rev., at 132. In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.
That interpretation accords with the history of the Rule. Because Rule 23 “stems from equity practice” that predated its codification, Amchem Products, Inc. v. Windsor, 521 U. S. 591, 613 (1997), in determining its meaning we have previously looked to the historical models on which the Rule was based, Ortiz v. Fibreboard Corp., 527 U. S. 815, 841–845 (1999). As we observed in Amchem, “[c]ivil rights cases against parties charged with unlawful, classbased discrimination are prime examples” of what (b)(2) is meant to capture. 521 U. S., at 614. In particular, the Rule reflects a series of decisions involving challenges to racial segregation—conduct that was remedied by a single classwide order. In none of the cases cited by the Advisory Committee as examples of (b)(2)’s antecedents did the plaintiffs combine any claim for individualized relief with their classwide injunction. See Advisory Committee’s Note, 39 F. R. D. 69, 102 (1966) (citing cases); e.g., Potts v. Flax, 313 F. 2d 284, 289, n. 5 (CA5 1963); Brunson v. Board of Trustees of Univ. of School Dist. No. 1, Clarendon Cty., 311 F. 2d 107, 109 (CA4 1962) (per curiam); Frasier v. Board of Trustees of N.C., 134 F. Supp. 589, 593 (NC 1955) (three-judge court), aff’d, 350 U. S. 979 (1956).
Permitting the combination of individualized and classwide relief in a (b)(2) class is also inconsistent with the structure of Rule 23(b). Classes certified under (b)(1) and (b)(2) share the most traditional justifications for class treatment—that individual adjudications would be impossible or unworkable, as in a (b)(1) class,11 or that the relief sought must perforce affect the entire class at once, as in a (b)(2) class. For that reason these are also mandatory classes: The Rule provides no opportunity for (b)(1) or (b)(2) class members to opt out, and does not even oblige the District Court to afford them notice of the action. Rule 23(b)(3), by contrast, is an “adventuresome innovation” of the 1966 amendments, Amchem, 521 U. S., at 614 (internal quotation marks omitted), framed for situations “in which ‘class-action treatment is not as clearly called for’,” id., at 615 (quoting Advisory Committee’s Notes, 28 U. S. C. App., p. 697 (1994 ed.)). It allows class certification in a much wider set of circumstances but with greater procedural protections. Its only prerequisites are that “the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Rule 23(b)(3). And unlike (b)(1) and (b)(2) classes, the (b)(3) class is not mandatory; class members are entitled to receive “the best notice that is practicable under the circumstances” and to withdraw from the class at their option. See Rule 23(c)(2)(B).
Given that structure, we think it clear that individualized monetary claims belong in Rule 23(b)(3). The procedural protections attending the (b)(3) class— predominance, superiority, mandatory notice, and the right to opt out—are missing from (b)(2) not because the Rule considers them unnecessary, but because it considers them unnecessary to a (b)(2) class. When a class seeks an indivisible injunction benefitting all its members at once, there is no reason to undertake a case-specific inquiry into whether class issues predominate or whether class action is a superior method of adjudicating the dispute. Predominance and superiority are self-evident. But with respect to each class member’s individualized claim for money, that is not so—which is precisely why (b)(3) requires the judge to make findings about predominance and superiority before allowing the class. Similarly, (b)(2) does not require that class members be given notice and optout rights, presumably because it is thought (rightly or wrongly) that notice has no purpose when the class is mandatory, and that depriving people of their right to sue in this manner complies with the Due Process Clause. In the context of a class action predominantly for money damages we have held that absence of notice and opt-out violates due process. See Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 812 (1985). While we have never held that to be so where the monetary claims do not predominate, the serious possibility that it may be so provides an additional reason not to read Rule 23(b)(2) to include the monetary claims here.
Against that conclusion, respondents argue that their claims for backpay were appropriately certified as part of a class under Rule 23(b)(2) because those claims do not “predominate” over their requests for injunctive and declaratory relief. They rely upon the Advisory Committee’s statement that Rule 23(b)(2) “does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” 39 F. R. D., at 102 (emphasis added). The negative implication, they argue, is that it does extend to cases in which the appropriate final relief relates only partially and nonpredominantly to money damages. Of course it is the Rule itself, not the Advisory Committee’s description of it, that governs. And a mere negative inference does not in our view suffice to establish a disposition that has no basis in the Rule’s text, and that does obvious violence to the Rule’s structural features. The mere “predominance” of a proper (b)(2) injunctive claim does nothing to justify elimination of Rule 23(b)(3)’s procedural protections: It neither establishes the superiority of class adjudication over individual adjudication nor cures the notice and opt-out problems. We fail to see why the Rule should be read to nullify these protections whenever a plaintiff class, at its option, combines its monetary claims with a request—even a “predominating request”—for an injunction.
Respondents’ predominance test, moreover, creates perverse incentives for class representatives to place at risk potentially valid claims for monetary relief. In this case, for example, the named plaintiffs declined to include employees’ claims for compensatory damages in their complaint. That strategy of including only backpay claims made it more likely that monetary relief would not “predominate.” But it also created the possibility (if the predominance test were correct) that individual class members’ compensatory-damages claims would be precluded by litigation they had no power to hold themselves apart from. If it were determined, for example, that a particular class member is not entitled to backpay because her denial of increased pay or a promotion was not the product of discrimination, that employee might be collaterally estopped from independently seeking compensatory damages based on that same denial. That possibility underscores the need for plaintiffs with individual monetary claims to decide for themselves whether to tie their fates to the class representatives’ or go it alone—a choice Rule 23(b)(2) does not ensure that they have.
The predominance test would also require the District Court to reevaluate the roster of class members continually. The Ninth Circuit recognized the necessity for this when it concluded that those plaintiffs no longer employed by Wal-Mart lack standing to seek injunctive or declaratory relief against its employment practices. The Court of Appeals’ response to that difficulty, however, was not to eliminate all former employees from the certified class, but to eliminate only those who had left the company’s employ by the date the complaint was filed. That solution has no logical connection to the problem, since those who have left their Wal-Mart jobs since the complaint was filed have no more need for prospective relief than those who left beforehand. As a consequence, even though the validity of a (b)(2) class depends on whether “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole,” Rule 23(b)(2) (emphasis added), about half the members of the class approved by the Ninth Circuit have no claim for injunctive or declaratory relief at all. Of course, the alternative (and logical) solution of excising plaintiffs from the class as they leave their employment may have struck the Court of Appeals as wasteful of the District Court’s time. Which indeed it is, since if a backpay action were properly certified for class treatment under (b)(3), the ability to litigate a plaintiff ’s backpay claim as part of the class would not turn on the irrelevant question whether she is still employed at Wal-Mart. What follows from this, however, is not that some arbitrary limitation on class membership should be imposed but that the backpay claims should not be certified under Rule 23(b)(2) at all.
Finally, respondents argue that their backpay claims are appropriate for a (b)(2) class action because a backpay award is equitable in nature. The latter may be true, but it is irrelevant. The Rule does not speak of “equitable” remedies generally but of injunctions and declaratory judgments. As Title VII itself makes pellucidly clear, backpay is neither. See 42 U. S. C. §2000e–5(g)(2)(B)(i) and (ii) (distinguishing between declaratory and injunctive relief and the payment of “backpay,” see §2000e– 5(g)(2)(A)).
In Allison v. Citgo Petroleum Corp., 151 F. 3d 402, 415 (CA5 1998), the Fifth Circuit held that a (b)(2) class would permit the certification of monetary relief that is “incidental to requested injunctive or declaratory relief,” which it defined as “damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.” In that court’s view, such “incidental damage should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new substantial legal or factual issues, nor entail complex individualized determinations.” Ibid. We need not decide in this case whether there are any forms of “incidental” monetary relief that are consistent with the interpretation of Rule 23(b)(2) we have announced and that comply with the Due Process Clause. Respondents do not argue that they can satisfy this standard, and in any event they cannot.
Contrary to the Ninth Circuit’s view, Wal-Mart is entitled to individualized determinations of each employee’s eligibility for backpay. Title VII includes a detailed remedial scheme. If a plaintiff prevails in showing that an employer has discriminated against him in violation of the statute, the court “may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, [including] reinstatement or hiring of employees, with or without backpay . . . or any other equitable relief as the court deems appropriate.” §2000e–5(g)(1). But if the employer can show that it took an adverse employment action against an employee for any reason other than discrimination, the court cannot order the “hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any backpay.” §2000e–5(g)(2)(A). We have established a procedure for trying pattern-orpractice cases that gives effect to these statutory requirements. When the plaintiff seeks individual relief such as reinstatement or backpay after establishing a pattern or practice of discrimination, “a district court must usually conduct additional proceedings . . . to determine the scope of individual relief.” Teamsters, 431 U. S., at 361. At this phase, the burden of proof will shift to the company, but it will have the right to raise any individual affirmative defenses it may have, and to “demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.” Id., at 362.
The Court of Appeals believed that it was possible to replace such proceedings with Trial by Formula. A sample set of the class members would be selected, as to whom liability for sex discrimination and the backpay owing as a result would be determined in depositions supervised by a master. The percentage of claims determined to be valid would then be applied to the entire remaining class, and the number of (presumptively) valid claims thus derived would be multiplied by the average backpay award in the sample set to arrive at the entire class recovery—without further individualized proceedings. 603 F. 3d, at 625–627. We disapprove that novel project. Because the Rules Enabling Act forbids interpreting Rule 23 to “abridge, enlarge or modify any substantive right,” 28 U. S. C. §2072(b); see Ortiz, 527 U. S., at 845, a class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims. And because the necessity of that litigation will prevent backpay from being “incidental” to the classwide injunction, respondents’ class could not be certified even assuming, arguendo, that “incidental” monetary relief can be awarded to a 23(b)(2) class.
* * * The judgment of the Court of Appeals is Reversed.
1 The complaint included seven named plaintiffs, but only three remain part of the certified class as narrowed by the Court of Appeals.
2 Rule 23(b)(1) allows a class to be maintained where “prosecuting separate actions by or against individual class members would create a risk of ” either “(A) inconsistent or varying adjudications,” or “(B) adjudications . . . that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impeded their ability to protect their interests.” Rule 23(b)(3) states that a class may be maintained where “questions of law or fact common to class members predominate over any questions affecting only individual members,” and a class action would be “superior to other available methods for fairly and efficiently adjudicating the controversy.” The applicability of these provisions to the plaintiff class is not before us.
3The District Court excluded backpay claims based on promotion opportunities that had not been publicly posted, for the reason that no applicant data could exist for such positions. 222 F. R. D. 137, 182 (ND Cal. 2004). It also decided to afford class members notice of the action and the right to opt-out of the class with respect to respondents’ punitive-damages claim. Id., at 173.
4 To enable that result, the Court of Appeals trimmed the (b)(2) class in two ways: First, it remanded that part of the certification order which included respondents’ punitive-damages claim in the (b)(2) class, so that the District Court might consider whether that might cause the monetary relief to predominate. 603 F. 3d, at 621. Second, it accepted in part Wal-Mart’s argument that since class members whom it no longer employed had no standing to seek injunctive or declaratory relief, as to them monetary claims must predominate. It excluded from the certified class “those putative class members who were no longer Wal-Mart employees at the time Plaintiffs’ complaint was filed,” id., at 623 (emphasis added).
5 We have previously stated in this context that “[t]he commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Those requirements therefore also tend to merge with the adequacy-of-representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest.” General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, 157–158, n. 13 (1982). In light of our disposition of the commonality question, however, it is unnecessary to resolve whether respondents have satisfied the typicality and adequaterepresentation requirements of Rule 23(a).
6 A statement in one of our prior cases, Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 177 (1974), is sometimes mistakenly cited to the contrary: “We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” But in that case, the judge had conducted a preliminary inquiry into the merits of a suit, not in order to determine the propriety of certification under Rules 23(a) and (b) (he had already done that, see id., at 165), but in order to shift the cost of notice required by Rule 23(c)(2) from the plaintiff to the defendants. To the extent the quoted statement goes beyond the permissibility of a merits inquiry for any other pretrial purpose, it is the purest dictum and is contradicted by our other cases. Perhaps the most common example of considering a merits question at the Rule 23 stage arises in class-action suits for securities fraud. Rule 23(b)(3)’s requirement that “questions of law or fact common to class members predominate over any questions affecting only individual members” would often be an insuperable barrier to class certification, since each of the individual investors would have to prove reliance on the alleged misrepresentation. But the problem dissipates if the plaintiffs can establish the applicability of the so-called “fraud on the market” presumption, which says that all traders who purchase stock in an efficient market are presumed to have relied on the accuracy of a company’s public statements. To invoke this presumption, the plaintiffs seeking 23(b)(3) certification must prove that their shares were traded on an efficient market, Erica P. John Fund, Inc. v. Halliburton Co., 563 U. S. ___, ___ (2011) (slip op., at 5), an issue they will surely have to prove again at trial in order to make out their case on the merits.
7 In a pattern-or-practice case, the plaintiff tries to “establish by a preponderance of the evidence that . . . discrimination was the company’s standard operating procedure[,] the regular rather than the unusual practice.” Teamsters v. United States, 431 U. S. 324, 358 (1977); see also Franks v. Bowman Transp. Co., 424 U. S. 747, 772 (1976). If he succeeds, that showing will support a rebuttable inference that all class members were victims of the discriminatory practice, and will justify “an award of prospective relief,” such as “an injunctive order against the continuation of the discriminatory practice.” Teamsters, supra, at 361.
8 Bielby’s conclusions in this case have elicited criticism from the very scholars on whose conclusions he relies for his social-framework analysis. See Monahan, Walker, & Mitchell, Contextual Evidence of Gender Discrimination: The Ascendance of “Social Frameworks,” 94 Va. L. Rev. 1715, 1747 (2008) (“[Bielby’s] research into conditions and behavior at Wal-Mart did not meet the standards expected of social scientific research into stereotyping and discrimination”); id., at 1745, 1747 (“[A] social framework necessarily contains only general statements about reliable patterns of relations among variables . . . and goes no further. . . . Dr. Bielby claimed to present a social framework, but he testified about social facts specific to Wal-Mart”); id., at 1747–1748 (“Dr. Bielby’s report provides no verifiable method for measuring and testing any of the variables that were crucial to his conclusions and reflects nothing more than Dr. Bielby’s ‘expert judgment’ about how general stereotyping research applied to all managers across all of WalMart’s stores nationwide for the multi-year class period”).
9 The dissent says that we have adopted “a rule that a discrimination claim, if accompanied by anecdotes, must supply them in numbers proportionate to the size of the class.” Post, at 5, n. 4 (GINSBURG, J., concurring in part and dissenting in part). That is not quite accurate. A discrimination claimant is free to supply as few anecdotes as he wishes. But when the claim is that a company operates under a general policy of discrimination, a few anecdotes selected from literally millions of employment decisions prove nothing at all.
10 For this reason, there is no force to the dissent’s attempt to distinguish Falcon on the ground that in that case there were “ ‘no common questions of law or fact’ between the claims of the lead plaintiff and the applicant class ” post, at 9, n. 7 (quoting Falcon, 457 U. S., at 162 (Burger, C. J., concurring in part and dissenting in part)). Here also there is nothing to unite all of the plaintiffs’ claims, since (contrary to the dissent’s contention, post, at 9, n. 7), the same employment practices do not “touch and concern all members of the class.”
11 Rule 23(b)(1) applies where separate actions by or against individual class members would create a risk of “establish[ing] incompatible standards of conduct for the party opposing the class,” Rule 23(b)(1)(A), such as “where the party is obliged by law to treat the members of the class alike,” Amchem Products, Inc. v. Windsor, 521 U. S. 591, 614 (1997), or where individual adjudications “as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests,” Rule 23(b)(1)(B), such as in “ ‘limited fund’ cases, . . . in which numerous persons make claims against a fund insufficient to satisfy all claims,” Amchem, supra, at 614.
Opinion of GINSBURG, J.
SUPREME COURT OF THE UNITED STATES
WAL-MART STORES, INC., PETITIONER v.
BETTY DUKES ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 20, 2011]
JUSTICE GINSBURG, with whom JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, concurring in part and dissenting in part.
The class in this case, I agree with the Court, should not have been certified under Federal Rule of Civil Procedure 23(b)(2). The plaintiffs, alleging discrimination in violation of Title VII, 42 U. S. C. §2000e et seq., seek monetary relief that is not merely incidental to any injunctive or declaratory relief that might be available. See ante, at 20– 27. A putative class of this type may be certifiable under Rule 23(b)(3), if the plaintiffs show that common class questions “predominate” over issues affecting individuals— e.g., qualification for, and the amount of, backpay or compensatory damages—and that a class action is “superior” to other modes of adjudication.
Whether the class the plaintiffs describe meets the specific requirements of Rule 23(b)(3) is not before the Court, and I would reserve that matter for consideration and decision on remand.1 The Court, however, disqualifies the class at the starting gate, holding that the plaintiffs cannot cross the “commonality” line set by Rule 23(a)(2). In so ruling, the Court imports into the Rule 23(a) determination concerns properly addressed in a Rule 23(b)(3) assessment.
Rule 23(a)(2) establishes a preliminary requirement for maintaining a class action: “[T]here are questions of law or fact common to the class.”2 The Rule “does not require that all questions of law or fact raised in the litigation be common,” 1 H. Newberg & A. Conte, Newberg on Class Actions §3.10, pp. 3–48 to 3–49 (3d ed. 1992); indeed, “[e]ven a single question of law or fact common to the members of the class will satisfy the commonality requirement,” Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149, 176, n. 110 (2003). See Advisory Committee’s 1937 Notes on Fed. Rule Civ. Proc. 23, 28 U. S. C. App., p. 138 (citing with approval cases in which “there was only a question of law or fact common to” the class members).
A “question” is ordinarily understood to be “[a] subject or point open to controversy.” American Heritage Dictionary 1483 (3d ed. 1992). See also Black’s Law Dictionary 1366 (9th ed. 2009) (defining “question of fact” as “[a] disputed issue to be resolved . . . [at] trial” and “question of law” as “[a]n issue to be decided by the judge”). Thus, a “question” “common to the class” must be a dispute, either of fact or of law, the resolution of which will advance the determination of the class members’ claims.3
The District Court, recognizing that “one significant issue common to the class may be sufficient to warrant certification,” 222 F. R. D. 137, 145 (ND Cal. 2004), found that the plaintiffs easily met that test. Absent an error of law or an abuse of discretion, an appellate tribunal has no warrant to upset the District Court’s finding of commonality. See Califano v. Yamasaki, 442 U. S. 682, 703 (1979) (“[M]ost issues arising under Rule 23 . . . [are] committed in the first instance to the discretion of the district court.”).
The District Court certified a class of “[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998.” 222 F. R. D., at 141–143 (internal quotation marks omitted). The named plaintiffs, led by Betty Dukes, propose to litigate, on behalf of the class, allegations that Wal-Mart discriminates on the basis of gender in pay and promotions. They allege that the company “[r]eli[es] on gender stereotypes in making employment decisions such as . . . promotion[s] [and] pay.” App. 55a. Wal-Mart permits those prejudices to infect personnel decisions, the plaintiffs contend, by leaving pay and promotions in the hands of “a nearly all male managerial workforce” using “arbitrary and subjective criteria.” Ibid. Further alleged barriers to the advancement of female employees include the company’s requirement, “as a condition of promotion to management jobs, that employees be willing to relocate.” Id., at 56a. Absent instruction otherwise, there is a risk that managers will act on the familiar assumption that women, because of their services to husband and children, are less mobile than men. See Dept. of Labor, Federal Glass Ceiling Commission, Good for Business: Making Full Use of the Nation’s Human Capital 151 (1995).
Women fill 70 percent of the hourly jobs in the retailer’s stores but make up only “33 percent of management employees.” 222 F. R. D., at 146. “[T]he higher one looks in the organization the lower the percentage of women.” Id., at 155. 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.” Ibid.; cf. Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S. 618, 643 (2007) (GINSBURG, J., dissenting).
The District Court identified “systems for . . . promoting in-store employees” that were “sufficiently similar across regions and stores” to conclude that “the manner in which these systems affect the class raises issues that are common to all class members.” 222 F. R. D., at 149. The selection of employees for promotion to in-store management “is fairly characterized as a ‘tap on the shoulder’ process,” in which managers have discretion about whose shoulders to tap. Id., at 148. Vacancies are not regularly posted; from among those employees satisfying minimum qualifications, managers choose whom to promote on the basis of their own subjective impressions. Ibid.
Wal-Mart’s compensation policies also operate uniformly across stores, the District Court found. The retailer leaves open a $2 band for every position’s hourly pay rate. WalMart provides no standards or criteria for setting wages within that band, and thus does nothing to counter unconscious bias on the part of supervisors. See id., at 146–147. Wal-Mart’s supervisors do not make their discretionary decisions in a vacuum. The District Court reviewed means Wal-Mart used to maintain a “carefully constructed . . . corporate culture,” such as frequent meetings to reinforce the common way of thinking, regular transfers of managers between stores to ensure uniformity throughout the company, monitoring of stores “on a close and constant basis,” and “Wal-Mart TV,” “broadcas[t] . . . into all stores.” Id., at 151–153 (internal quotation marks omitted).
The plaintiffs’ evidence, including class members’ tales of their own experiences,4 suggests that gender bias suffused Wal-Mart’s company culture. Among illustrations, senior management often refer to female associates as “little Janie Qs.” Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 13 (internal quotation marks omitted). One manager told an employee that “[m]en are here to make a career and women aren’t.” 222 F. R. D., at 166 (internal quotation marks omitted). A committee of female Wal-Mart executives concluded that “[s]tereotypes limit the opportunities offered to women.” Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, at 16 (internal quotation marks omitted).
Finally, the plaintiffs presented an expert’s appraisal to show that the pay and promotions disparities at Wal-Mart “can be explained only by gender discrimination and not by . . . neutral variables.” 222 F. R. D., at 155. Using regression analyses, their expert, Richard Drogin, controlled for factors including, inter alia, job performance, length of time with the company, and the store where an employee worked. Id., at 159.5 The results, the District Court found, were sufficient to raise an “inference of discrimination.” Id., at 155–160.
The District Court’s identification of a common question, whether Wal-Mart’s pay and promotions policies gave rise to unlawful discrimination, was hardly infirm. The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects. Managers, like all humankind, may be prey to biases of which they are unaware.6 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.
The plaintiffs’ allegations resemble those in one of the prototypical cases in this area, Leisner v. New York Tel. Co., 358 F. Supp. 359, 364–365 (SDNY 1973). In deciding on promotions, supervisors in that case were to start with objective measures; but ultimately, they were to “look at the individual as a total individual.” Id., at 365 (internal quotation marks omitted). The final question they were to ask and answer: “Is this person going to be successful in our business?” Ibid. (internal quotation marks omitted). It is hardly surprising that for many managers, the ideal candidate was someone with characteristics similar to their own.
We have held that “discretionary employment practices” can give rise to Title VII claims, not only when such practices are motivated by discriminatory intent but also when they produce discriminatory results. See Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 988, 991 (1988). But see ante, at 17 (“[P]roving that [a] discretionary system has produced a . . . disparity is not enough.”). In Watson, as here, an employer had given its managers large authority over promotions. An employee sued the bank under Title VII, alleging that the “discretionary promotion system” caused a discriminatory effect based on race. 487 U. S., at 984 (internal quotation marks omitted). Four different supervisors had declined, on separate occasions, to promote the employee. Id., at 982. Their reasons were subjective and unknown. The employer, we noted “had not developed precise and formal criteria for evaluating candidates”; “[i]t relied instead on the subjective judgment of supervisors.” Ibid.
Aware of “the problem of subconscious stereotypes and prejudices,” we held that the employer’s “undisciplined system of subjective decisionmaking” was an “employment practic[e]” that “may be analyzed under the disparate impact approach.” Id., at 990–991. See also Wards Cove Packing Co. v. Atonio, 490 U. S. 642, 657 (1989) (recognizing “the use of ‘subjective decision making’ ” as an “employment practic[e]” subject to disparate-impact attack).
The plaintiffs’ allegations state claims of gender discrimination in the form of biased decisionmaking in both pay and promotions. The evidence reviewed by the District Court adequately demonstrated that resolving those claims would necessitate examination of particular policies and practices alleged to affect, adversely and globally, women employed at Wal-Mart’s stores. Rule 23(a)(2), setting a necessary but not a sufficient criterion for classaction certification, demands nothing further.
The Court gives no credence to the key dispute common to the class: whether Wal-Mart’s discretionary pay and promotion policies are discriminatory. See ante, at 9 (“Reciting” questions like “Is [giving managers discretion over pay] an unlawful employment practice?” “is not sufficient to obtain class certification.”). “What matters,” the Court asserts, “is not the raising of common ‘questions,’ ” but whether there are “[d]issimilarities within the proposed class” that “have the potential to impede the generation of common answers.” Ante, at 9–10 (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 132 (2009); some internal quotation marks omitted).
The Court blends Rule 23(a)(2)’s threshold criterion with the more demanding criteria of Rule 23(b)(3), and thereby elevates the (a)(2) inquiry so that it is no longer “easily satisfied,” 5 J. Moore et al., Moore’s Federal Practice §23.23, p. 23–72 (3d ed. 2011).7 Rule 23(b)(3) certification requires, in addition to the four 23(a) findings, determinations that “questions of law or fact common to class members predominate over any questions affecting only individual members” and that “a class action is superior to other available methods for . . . adjudicating the controversy.”8
The Court’s emphasis on differences between class members mimics the Rule 23(b)(3) inquiry into whether common questions “predominate” over individual issues. And by asking whether the individual differences “impede” common adjudication, ante, at 10 (internal quotation marks omitted), the Court duplicates 23(b)(3)’s question whether “a class action is superior” to other modes of adjudication. Indeed, Professor Nagareda, whose “dissimilarities” inquiry the Court endorses, developed his position in the context of Rule 23(b)(3). See 84 N. Y. U. L. Rev., at 131 (Rule 23(b)(3) requires “some decisive degree of similarity across the proposed class” because it “speaks of common ‘questions’ that ‘predominate’ over individual ones”).9 “The Rule 23(b)(3) predominance inquiry” is meant to “tes[t] whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Products, Inc. v. Windsor, 521 U. S. 591, 623 (1997). If courts must conduct a “dissimilarities” analysis at the Rule 23(a)(2) stage, no mission remains for Rule 23(b)(3).
Because Rule 23(a) is also a prerequisite for Rule 23(b)(1) and Rule 23(b)(2) classes, the Court’s “dissimilarities” position is far reaching. Individual differences should not bar a Rule 23(b)(1) or Rule 23(b)(2) class, so long as the Rule 23(a) threshold is met. See Amchem Products, 521 U. S., at 623, n. 19 (Rule 23(b)(1)(B) “does not have a predominance requirement”); Yamasaki, 442 U. S., at 701 (Rule 23(b)(2) action in which the Court noted that “[i]t is unlikely that differences in the factual background of each claim will affect the outcome of the legal issue”). For example, in Franks v. Bowman Transp. Co., 424 U. S. 747 (1976), a Rule 23(b)(2) class of AfricanAmerican truckdrivers complained that the defendant had discriminatorily refused to hire black applicants. We recognized that the “qualification[s] and performance” of individual class members might vary. Id., at 772 (internal quotation marks omitted). “Generalizations concerning such individually applicable evidence,” we cautioned, “cannot serve as a justification for the denial of [injunctive] relief to the entire class.” Ibid.
The “dissimilarities” approach leads the Court to train its attention on what distinguishes individual class members, rather than on what unites them. Given the lack of standards for pay and promotions, the majority says, “demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s.” Ante, at 15.
Wal-Mart’s delegation of discretion over pay and promotions is a policy uniform throughout all stores. The very nature of discretion is that people will exercise it in various ways. A system of delegated discretion, Watson held, is a practice actionable under Title VII when it produces discriminatory outcomes. 487 U. S., at 990–991; see supra, at 7–8. A finding that Wal-Mart’s pay and promotions practices in fact violate the law would be the first step in the usual order of proof for plaintiffs seeking individual remedies for company-wide discrimination. Teamsters v. United States, 431 U. S. 324, 359 (1977); see Albemarle Paper Co. v. Moody, 422 U. S. 405, 415–423 (1975). That each individual employee’s unique circumstances will ultimately determine whether she is entitled to backpay or damages, §2000e–5(g)(2)(A) (barring backpay if a plaintiff “was refused . . . advancement . . . for any reason other than discrimination”), should not factor into the Rule 23(a)(2) determination.
* * *
The Court errs in importing a “dissimilarities” notion suited to Rule 23(b)(3) into the Rule 23(a) commonality inquiry. I therefore cannot join Part II of the Court’s opinion.
1 The plaintiffs requested Rule 23(b)(3) certification as an alternative, should their request for (b)(2) certification fail. Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 47.
2 Rule 23(a) lists three other threshold requirements for class-action certification: “(1) the class is so numerous that joinder of all members is impracticable”; “(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.” The numerosity requirement is clearly met and Wal-Mart does not contend otherwise. As the Court does not reach the typicality and adequacy requirements, ante, at 9, n. 5, I will not discuss them either, but will simply record my agreement with the District Court’s resolution of those issues.
3 The Court suggests Rule 23(a)(2) must mean more than it says. See ante, at 8–10. If the word “questions” were taken literally, the majority asserts, plaintiffs could pass the Rule 23(a)(2) bar by “[r]eciting . . . questions” like “Do all of us plaintiffs indeed work for Wal-Mart?” Ante, at 9. Sensibly read, however, the word “questions” means disputed issues, not any utterance crafted in the grammatical form of a question.
4 The majority purports to derive from Teamsters v. United States, 431 U. S. 324 (1977), a rule that a discrimination claim, if accompanied by anecdotes, must supply them in numbers proportionate to the size of the class. Ante, at 17–18. Teamsters, the Court acknowledges, see ante, at 18, n. 9, instructs that statistical evidence alone may suffice, 431 U. S., at 339; that decision can hardly be said to establish a numerical floor before anecdotal evidence can be taken into account.
5 The Court asserts that Drogin showed only average differences at the “regional and national level” between male and female employees. Ante, at 16 (internal quotation marks omitted). In fact, his regression analyses showed there were disparities within stores. The majority’s contention to the contrary reflects only an arcane disagreement about statistical method—which the District Court resolved in the plaintiffs’ favor. 222 F. R. D. 137, 157 (ND Cal. 2004). Appellate review is no occasion to disturb a trial court’s handling of factual disputes of this order.
6 An example vividly illustrates how subjective decisionmaking can be a vehicle for discrimination. Performing in symphony orchestras was long a male preserve. Goldin and Rouse, Orchestrating Impartiality: The Impact of “Blind” Auditions on Female Musicians, 90 Am. Econ. Rev. 715, 715–716 (2000). In the 1970’s orchestras began hiring musicians through auditions open to all comers. Id., at 716. Reviewers were to judge applicants solely on their musical abilities, yet subconscious bias led some reviewers to disfavor women. Orchestras that permitted reviewers to see the applicants hired far fewer female musicians than orchestras that conducted blind auditions, in which candidates played behind opaque screens. Id., at 738.
7 The Court places considerable weight on General Telephone Co. of Southwest v. Falcon, 457 U. S. 147 (1982). Ante, at 12–13. That case has little relevance to the question before the Court today. The lead plaintiff in Falcon alleged discrimination evidenced by the company’s failure to promote him and other Mexican-American employees and failure to hire Mexican-American applicants. There were “no common questions of law or fact” between the claims of the lead plaintiff and the applicant class. 457 U. S., at 162 (Burger, C. J., concurring in part and dissenting in part) (emphasis added). The plaintiff-employee alleged that the defendant-employer had discriminated against him intentionally. The applicant class claims, by contrast, were “advanced under the ‘adverse impact’ theory,” ibid., appropriate for facially neutral practices. “[T]he only commonality [wa]s that respondent is a MexicanAmerican and he seeks to represent a class of Mexican-Americans.” Ibid. Here the same practices touch and concern all members of the class.
8 “A class action may be maintained if Rule 23(a) is satisfied and if: “(1) prosecuting separate actions by or against individual class members would create a risk of . . . inconsistent or varying adjudications . . . [or] adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members . . . ; “(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief . . . is appropriate respecting the class as a whole; or “(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. Rule Civ. Proc. 23(b) (paragraph breaks added).
9 Cf. supra, at 2 (Rule 23(a) commonality prerequisite satisfied by “[e]ven a single question . . . common to the members of the class” (quoting Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149, 176, n. 110 (2003)).
ORAL ARGUMENT OF THEODORE J. BOUTROUS, JR., ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We'll hear argument first this morning in Case 10-277, Wal-Mart Stores v. Dukes.
Mr. Boutrous Jr.: Mr. Chief Justice, and may it please the Court:
The mandatory nationwide class in this case was improperly certified for two fundamental reasons.
First, plaintiffs failed to satisfy Rule 23(a)'s cohesion requirements as reflected in the commonality, typicality, and adequacy requirements of the rule.
Second, plaintiffs' highly individualized claims for monetary relief failed to satisfy Rule 23(b)(2)'s requirements for certification of a mandatory non-opt-out class.
Regarding Rule 23(a), because the plaintiffs' claims in this case hinge on the delegation of discretion to individual managers throughout the country, they cannot meet the cohesion requirements that are reflected in -- in Rule 23(a).
The delegation of discretion in some ways is the opposite of cohesive claims that are common to everyone in the class.
The common policies that the plaintiffs point to are either neutral and not argued to be discriminatory or they are affirmatively nondiscriminatory.
The company has a very strong policy against discrimination and in favor of diversity.
Chief Justice John G. Roberts: I suppose if corporate headquarters had learned that the subjective decisionmaking or the delegation of decisionmaking to the field was resulting in several discriminatory practices or a pattern of discrimination -- in other words, the decentralized process was leading to discrimination -- then I suppose the company -- that that could be attributed to the policy adopted by -- at headquarters?
Mr. Boutrous Jr.: No, Your Honor.
I think that in this situation, if there was a pattern, for example, at a particular store where the decisionmaking unit--
Chief Justice John G. Roberts: No, I'm talking about -- so, they've got thousands of stores, and, you know, every week they get a report from another store saying that, you know, there's an allegation of gender discrimination.
At some point, can't they conclude that it is their policy of decentralizing decisionmaking that is causing or permitting that discrimination to take place?
Mr. Boutrous Jr.: --That -- I think that would be an inquiry, Your Honor.
I don't think it would rise to a pattern or practice or a common policy that affects everyone in the same way.
Certainly, companies do look at the -- the situation throughout the company and seek to root out discrimination, but it would take more than some reports, especially in -- in a company that has so many stores and so many units.
And here, the plaintiffs' claims simply aren't typical.
If the three named plaintiffs stand before the court, they are supposed to represent 500,000 or a million or more people and stand in judgment -- that's the words the Court used in Hansberry v. Lee -- to represent all those other people.
And the claim is that the individual decisionmakers in those other cases exercised their discretion in a way that was biased, and there's no proof of that.
Justice Ruth Bader Ginsburg: Did--
Justice Anthony Kennedy: The Chief Justice's question reminds me somewhat of our rule in Monell under 1983: A city is not liable for a -- a constitutional violation unless it has a policy.
Would you think that we could use that as an analogue to determine whether or not there is a common question here?
Mr. Boutrous Jr.: Yes, Your Honor.
I think the analogue is that if a company had a policy, a general policy, of discrimination as opposed to here, where it's a general policy against discrimination, and it was -- in the words of the Court in Feeney, saw patterns throughout the company and because of sex, because of gender, continued to allow the patterns to exist, that would raise a different question.
Justice Anthony Kennedy: Suppose, following the Monell analogue, there's -- it's a -- there's a showing of deliberate indifference to the violation.
Would that be a policy?
Mr. Boutrous Jr.: Your Honor, I think deliberate indifference raises a different question.
Under a disparate treatment claim, again, in Feeney, the test would be, was the company allowing the discrimination to occur because of gender, because it wanted there to be discrimination?
There's no evidence of that here.
Justice Ruth Bader Ginsburg: --Is there any responsibility if you -- the numbers are what has been left out so far.
The company gets reports month after month showing that women are disproportionately passed over for promotion, and there is a pay gap between men and women doing the same job.
It happens not once, but twice.
Isn't there some responsibility on the company to say, is gender discrimination at work, and if it is, isn't there an obligation to stop it?
Mr. Boutrous Jr.: Your Honor, yes, there is an obligation to ensure -- for a company to do its best to ensure there are not wage gaps and discrimination.
But here, for example, if one looks at the aggregated statistics that the plaintiffs have pointed to, it points to a completely different issue.
It does not show that there were gender gaps at the stores among comparable people.
That's really the fundamental flaw in their case.
Their argument is that individual decisionmakers throughout the country were making stereotyped decisions and that that had a common effect, but they just added everything together.
They haven't shown a pattern across the map.
They've added all the data together and pointed to disparities, some of which mirror some of the -- the statistics that--
Justice Sonia Sotomayor: Counsel, I thought their expert didn't aggregate them together.
He did it regionally, not store by store, as your expert did, number one; and, number two, that he performed, as accepted by the district court, and affirmed by the circuit court, any number of controlled variable comparisons, including job history, job ratings, and other things, and found that the disparity could not be explained on any of the normal variables that one would expect and that the disparity was significantly much higher than the 10 competitors of Wal-Mart and what they were paying their labor force.
So, what is speculative about that, number one?
And, two, why is that kind of statistical analysis inadequate to show that a policy of some sort exists?
Mr. Boutrous Jr.: --Justice Sotomayor, first, plaintiffs' expert did a national regression and then simply estimated the regional results.
He did not do a regional regression.
But even if he had, these statistics go more to the merits.
We think we have strong arguments on the merits responding to those statistical arguments--
Justice Sonia Sotomayor: Well, that begs the legal question, which is -- you're right.
Ultimately, you may win and prove to a factfinder that this analysis is fatally flawed, but what the district court concluded was that on the basis of your expert, whom he discounted because your expert was -- was basing analysis on -- on premises that the court found not acceptable, that there was enough here after a rigorous analysis.
What's the standard that the court should use in upsetting that factual conclusion?
Mr. Boutrous Jr.: --Your Honor, the district judge did not discount Wal-Mart's expert.
The district court found that it wasn't the stage at which to make a determination between the two.
The standard that we think would govern would be the standard that the Second Circuit adopted in the IPO case, which says there needs to be a choice.
When you're talking about discretionary decision around the country by different decisionmakers, there has to be some demonstration that there's a common effect throughout the system.
Our expert's report and testimony showed that at 90 percent of the stores, there was no pay disparity.
And that's the kind of -- and even putting that aside, the plaintiffs needed to come forward with something that showed that there was this miraculous recurrence at every decision across every store of stereotyping, and the evidence simply doesn't show that.
The -- the other problem on the -- on the cohesion analysis is that -- again, the typicality inquiry.
Each of the plaintiffs have very different stories.
One of them was promoted into a managerial position.
One was terminated for disciplinary violations.
One was promoted and then had a disciplinary problem and then was demoted.
In each of these cases, if this were an individual case, they would have to show that they were treated differently than people who were situated just like them, with the same supervisor, the same department, the same situation.
Justice Samuel Alito: What do you think is the difference between the standard that the district court was required to apply at the certification stage on the question whether there was a company-wide policy and the -- the standard that would be applied on the merits?
Mr. Boutrous Jr.: At the certification stage, Justice Alito, the plaintiffs did not have to prove that there was an actual policy of discrimination and that that was the company's policy, but they at least needed to point to a policy that was common and that linked all of these disparate individuals and disparate locations and different people together.
And -- and one -- their argument is that the common policy is giving tens of thousands of individuals discretion to do whatever they want.
That is not commonality.
It's the opposite.
Justice Elena Kagan: I don't think that's quite fair, Mr. Boutrous.
I think their argument was that the common policy was one of complete subjectivity, was one of using factors that allowed gender discrimination to come into all employment decisions.
And in Watson, we suggested that that was a policy, a policy of using subjective factors only, when making employment decisions.
That's exactly the policy that was alleged here.
Mr. Boutrous Jr.: Justice Kagan, they do not argue that it was an entirely subjective process.
As the Court suggested in Falcon, entirely subjective would -- would be a different issue.
They argue that it was excessive subjectivity and that there were general overarching company standards that exerted control.
On page -- I think it's on page 13 of their brief, they say the discretion was unguided.
Three pages later they say it was guided by these nondiscriminatory policies.
So, it's really an incoherent theory that does not have -- pose the kind of situation you're suggesting.
Justice Elena Kagan: I -- I guess I'm just a little -- a little bit confused as to why excessive subjectivity is not a policy that can be alleged in a Title VII pattern and practice suit or in a Title VII disparate impact suit.
Mr. Boutrous Jr.: Your Honor, in Watson, the Court did suggest -- did state and -- and hold that subjective decisionmaking could be challenged in a disparate impact case, but Justice O'Connor's opinion went on to say there needs to be the identification of a specific practice within that policy.
As the Court said in Falcon, Title VII does not govern policies; it governs practices.
And subjectivity is not a practice if it were a policy.
And there was a -- like most companies, Wal-Mart has a combination of objective and subjective standards.
Within that, the plaintiffs -- if they had pointed to some particular criteria, people with a great personality, they're going to -- they're -- they're the ones we're going -- we're going to push up, and they -- they were trying to tie that to a disparate impact or disparate treatment, that would be--
Justice Ruth Bader Ginsburg: Mr. Boutrous, there was a case, it was in the '70s, and it was a class action against AT&T for, I think, promotion into middle management.
What was at issue there was a part -- a test, part objective, but then in the end, the final step was a so-called total person test, and women disproportionately flunked at that total person.
And the idea wasn't at all complicated.
It was that most people prefer themselves; and so, a decisionmaker, all other things being equal, would prefer someone that looked like him.
And that was found, that total -- the application of that total person concept was found to be a violation of Title VII.
This sounds quite similar.
I mean, it's not just -- it's not subjective.
You have an expert -- I know you have some questions about that expert -- but the expert saying that gender bias can creep into a system like that simply because of the natural phenomenon that people tend to feel comfortable with people like themselves.
Mr. Boutrous Jr.: --Your Honor, this -- this is not like the total person test, but I think that is a very good example of something that could be a -- a practice inside the -- the overarching policies, and if you had a case where a particular decisionmaking unit applied the total practice test, and you had disparate results in that particular unit, that group of people could -- could -- would have a much stronger case for a class action.
But as Your Honor points out, the -- the sociologist here, who is the glue that's supposed to hold this class together, said he couldn't tell if stereotyping was occurring one-half of 1 percent or 95 percent or at all.
And this is a class action.
The question here is whether that we can assume that every decisionmaker acted in the same manner in a way that had in this Court's words the same injury, caused -- the plaintiffs had the same interest and the same injury, that's the way the Court put it in Amchem, by their own expert accepting all of their proof, the answer is no.
That assumption is not supported by the record.
That's why there's not the kind of cohesion that's necessary to protect the rights of the absent class members and the defendant.
The -- the -- the other--
Justice Elena Kagan: Mr. Boutrous, I think that that suggests that the plaintiffs would have to demonstrate discrimination in every individual case, and that's never been the law.
All that the plaintiffs have to demonstrate and, especially at this stage in the proceedings, is that there is a practice, a policy of subjectivity that on the whole results in discrimination against women, not that each one of these women in the class were themselves discriminated against.
Mr. Boutrous Jr.: --That's correct, Your Honor.
At the phase one, we're not arguing that a plaintiff would have to come forward and show that every class member was discriminated at that point.
Under the Teamsters' analysis, there must be proof of a standard operating procedure of discrimination.
Here, it's undisputed that Wal-Mart's policy -- and it wasn't just a written policy; it was implemented and enforced rigorously -- that was antidiscrimination.
But, Your Honor, you're correct, that each person doesn't have to come forward in phase one.
The big -- the other big problem here is that the district judge said in phase two, under Teamsters, Wal-Mart would not be entitled to put on its individual defenses.
Women who thought they had a claim would not be able to come forward if a -- in this process, the paper records suggested they didn't have a claim, and come into court and have their day in court and argue that they should be compensated.
The plaintiffs are trying to cut off half of the Teamsters' framework, which is fundamental both to due process and to Title VII because Title VII's section 706(g) states very clearly that only victims of discrimination may recover.
Chief Justice John G. Roberts: What -- what happens to the damages claim of an individual woman who is part of this class if that class prevails?
Mr. Boutrous Jr.: If the class prevails, then the -- the claim would be resolved in this manner under -- it's very unclear what the District Court had in mind.
Chief Justice John G. Roberts: Would -- would she be eligible for only back pay or compensatory damages as well?
Mr. Boutrous Jr.: Yes, Your Honor, she would only be eligible for back pay.
The plaintiffs retained their compensatory--
Chief Justice John G. Roberts: I'm sorry.
Mr. Boutrous Jr.: --their compensatory damage claims for themselves but waived those for the class members in order to get a class certified, which I think is a fundamental, crucial violation.
Chief Justice John G. Roberts: All right.
But would -- would the -- would the women with a claim for compensatory damages be able to sue that after the class prevails in this case?
Mr. Boutrous Jr.: Our view is that she would not be because that would have been part of the core nucleus of facts in the case.
Chief Justice John G. Roberts: Even -- even though she could have not received notice and not had an opportunity to opt out?
Mr. Boutrous Jr.: That's the -- that's the problem -- that goes to the problem with this (b)(2) certification, that this case, if it -- if it were going to be certified at all, needed to be looked at under Rule 23(b)(3).
Rule 23(b)(3) was -- was created for precisely this sort of circumstance, the growing edge of the law where individualized monetary claims are at stake.
The -- the language of Rule 23(b)(2) speaks of injunctive and declaratory relief.
Justice Sonia Sotomayor: Counsel, would--
Justice Elena Kagan: I thought your position was that this could not be certified under Rule 23(b)(3), either; is that correct?
Mr. Boutrous Jr.: Our view is the plaintiffs will -- will not be able to satisfy those -- those provisions, but that's why they brought it under Rule 23(b)(2), to circumvent the procedural protections of superiority, predominance, and the like.
Justice Sonia Sotomayor: --Would that bar the (b)(2) class?
Meaning if their claim is, as they state it, that they're seeking injunctive and declaratory relief against a discriminatory impact or -- case or a pattern and practice case, wouldn't that have value and wouldn't that value be, standing alone without the damages component, be that the plaintiffs who come in later have a presumption that discrimination affected them and the burden shifts to Wal-Mart to prove that there was a nondiscriminatory reason?
Mr. Boutrous Jr.: There certainly could be a benefit from an injunction if -- if the plaintiffs met all the standards.
The problem here is that the -- the individualized damage claims, the back pay claims, engulfed and overwhelm the injunctive relief--
Justice Sonia Sotomayor: Even if they did, why couldn't you separate out the (b)(2) issue from the (b)(3) question of whether monetary damages have enough common facts and law to warrant a certification under (b)(3)?
Mr. Boutrous Jr.: --Your Honor, some courts have done that, looked at the injunctive relief claims under -- under the (b)(2) standard and the monetary reliefs under a (b)(3) standard.
That can raise other complications, especially here the plaintiffs are seeking punitive damages as well, but that's at least a possibility.
It would certainly be better than this, shoe-horning these monetary relief claims that are so individualized.
Justice Sonia Sotomayor: So, would you address the -- address them separately for me, and tell me why a (b)(2) class couldn't exist only on injunctive relief?
And if it can, if you're conceding it can, then is your attack merely that the monetary component of this, the back pay -- which, you know, I know the dispute on whether that's equitable relief or compensatory relief or not -- why that just can't be separated out and put into the (b)(3) claim?
Mr. Boutrous Jr.: Your Honor, our view is that the injunctive relief claim still has significant problems concerning cohesion, adequacy, typicality, commonality.
On the adequacy point, this case includes at least 544 store managers who are alleged to be discriminators and victims.
If that's not a conflict under Amchem and the adequacy test in Hansberry v. Lee, I don't know what is.
The -- the women who are compelled to be in the class -- they can't opt out, they're current employees, they're former employees, they cut across every position in the country, and there's no demonstration that they're being affected in a common way.
So, I think there would still be those commonality, typicality, cohesion problems because of the nature of the plaintiffs' case here, the notion of the common policy being giving -- giving discretion and -- and independent judgment.
Justice Ruth Bader Ginsburg: I thought that -- correct me if I'm wrong, but I thought that this district judge said that -- that the absent class members would get notice and have an opportunity to -- to opt out.
So, a -- a plaintiff, a member of the class who wants to go for compensation instead of just back pay could opt out.
Mr. Boutrous Jr.: The district court, Justice Ginsburg, limited that ruling to the punitive damage claim, and the Ninth Circuit made clear it was viewing it that way.
It said under its ruling, which sent punitive damages back, that would simplify things because then there wouldn't have to be notice and an opportunity to opt out under back pay.
And back pay is monetary relief for individuals.
To bind people based on a balancing test under (b)(2) to a judgment to which they were not a party -- in Taylor v. Sturgell, this Court talked about the fundamental rule that an individual is not bound by a judgment to which they're not a party and said we need crisp rules with sharp corners in this area where such a fundamental right is at stake.
And that's why we think it needs to be Rule 23(b)(3) when individual monetary relief is at stake.
Justice Sonia Sotomayor: That begs my question.
Are you talking about any monetary relief?
You're -- you're claiming, I'm assuming, that monetary relief includes equitable relief.
Mr. Boutrous Jr.: Yes, Your Honor.
Justice Sonia Sotomayor: The Fifth Circuit has described a test where it doesn't use the predominant question; it uses the incidental test.
What's wrong with that test?
Mr. Boutrous Jr.: That test is much better than the test that was applied below.
The plaintiffs have walked away from the two tests that were applied in the lower court.
They have never contended they could meet the incidental damages test.
And under the Fifth Circuit's case, the Allison case, only automatic back pay that goes to the group as a whole would qualify for that.
Here, this is individualized relief.
Justice Sonia Sotomayor: I -- that's where I'm going to.
Would you accept that incidental test as appropriate to the question of when monetary damages predominate or don't?
Mr. Boutrous Jr.: Your Honor, the text of Rule 23(b)(2) is very clear.
It talks about injunctive and declaratory relief.
The only ambiguity that's created is from the advisory committee note, and as this Court said three weeks ago in the Milner case, we don't look to legislative history to try to create ambiguities.
The -- the other parts of the advisory committee notes make very clear that the drafters were concerned about the historical antecedents where it was an injunctive-only case to -- of -- to desegregate and the like.
I think the drafters of Rule 23(b)(2) would have been shocked if they had learned that this case that involves millions of claims for individualized monetary relief were -- were being sought to be included in a (b)(2) class.
That said, Your Honor, the incidental damage test is -- is I think far superior because it's at least clearer and would be closer to a sharp, bright-line rule, which is required in this context.
I'd like to go back briefly to the point I made earlier about individual relief and taking away the rights of both Wal-Mart and the absent class members.
The procedures that would be used here -- the Ninth Circuit proposed a statistical sampling method.
The plaintiffs do not defend that.
They do not mention the Hilao case, which was the cornerstone of the -- the Ninth Circuit's ruling, which would allow sort of a prediction about who might have been hurt, how many people might have been hurt, and then a divvying up of -- of moneys based on that.
The district court precluded the fundamental Teamsters hearings, which would allow, once a presumption, if one was to arise, of discrimination occurred in a pattern of practice -- would allow the defendant to then show that it didn't discriminate on -- on an individual basis, and it would allow the individuals to come in and have their day in court.
That violates Title VII.
It violates the Rules Enabling Act, and -- and we think it really shows some of the core flaws in this case.
Chief Justice John G. Roberts: What if the class does -- does not prevail; it loses?
Does that bar an individual woman at a particular Wal-Mart from bringing these same claims?
Mr. Boutrous Jr.: Yes, Your Honor.
There's a presumption in -- in the world of class actions -- there's two that I think the plaintiffs are -- are relying on.
One is that class actions are always good, and the bigger the class action, the better, and that the class will win.
None of those presumptions can be counted on.
If the plaintiffs lose, and they -- and here their compensatory damages claims, I think, would be gone because the named plaintiffs are asserting them.
If they tried to bring a case as pattern or practice or pay or promotion, there would be significant questions of res judicata and collateral estoppel.
And it's not fair to anyone to put this all into one big class.
Justice Elena Kagan: But you're not suggesting that they would be precluded on individual discrimination claims, are you?
Mr. Boutrous Jr.: No, Your Honor, if they had individual claims that were separate from the nucleus of operative facts here, that might pose a different question.
Chief Justice John G. Roberts: But what if it were the same theory, that the reason this person was able to discriminate was because he had total subjective discretion in his hiring?
Mr. Boutrous Jr.: Then I -- then there would be a real problem of collateral estoppel or res judicata, Your Honor.
Mr. Chief Justice, I'd like to reserve my remaining time for rebuttal.
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Boutrous Jr.: Thank you.
Chief Justice John G. Roberts: Mr. Sellers.
ORAL ARGUMENT OF JOSEPH M. SELLERS ON BEHALF OF THE RESPONDENTS
Mr. Sellers: Mr. Chief Justice, may it please the Court:
This case follows from the -- the Teamsters and Watson models of theories of discrimination, and as a consequence, there is no requirement to have a formal policy of discrimination here.
It can be--
Justice Sonia Sotomayor: What would the injunction look like in this case?
Mr. Sellers: --The injunction would look like a series of remedial measures that would direct Wal-Mart to provide for detailed criteria by which to make pay and promotion decisions that are job-related in a way that hasn't been true up until now.
It would provide for it to hold managers accountable for the decisions they make; it would ensure effective oversight of the -- of these pay and promotion decisions in a way that the company had -- while the company did have, by the way, information regularly submitted to it about pay decisions, it took no action, and it did not effectively monitor -- allowed these problems to fester.
Chief Justice John G. Roberts: All right.
Is it your position that on this scale subjective decisionmaking processes are necessarily illegal?
Mr. Sellers: No, not at all, Mr. Chief Justice.
Chief Justice John G. Roberts: So, if this were -- how many stores are we talking about, a thousand stores?
Mr. Sellers: Several thousand stores.
Chief Justice John G. Roberts: Several thousand stores.
How many examples of abuse of the subjective discrimination delegation need to be shown before you can say that flows from the policy rather than from bad actors?
I assume with three -- however many thousands of stores, you're going to have some bad apples.
Mr. Sellers: Well, Mr. Chief Justice, we have some examples in the record.
Chief Justice John G. Roberts: No, I know there are examples.
How many do you need to have?
Mr. Sellers: --I--
Chief Justice John G. Roberts: Surely it won't be -- if somebody sends one letter in saying the guy at this plant -- is -- plant -- this store is discriminating, that can't be enough to support your theory.
Mr. Sellers: --That's correct.
We don't submit that.
There is no minimum number that this Court has ever set.
Teamsters, as an example in Teamsters, the Court had before it about 40 examples, but significantly they weren't required.
In order to establish a pattern and practice of liability -- and we have more than that, of course -- but in order to establish a pattern and practice of liability or at least a prima facie case, Teamsters holds that what you need to do is show that there were disparities sufficiently substantial to create an inference of discrimination with respect to a discrete practice.
Chief Justice John G. Roberts: Is it -- is it true that Wal-Mart's pay disparity across the company was less than the national average?
Mr. Sellers: Mr. Chief Justice, the position -- I don't know that that's a fair comparison.
The position that Wal-Mart has advanced makes no -- the comparison it makes is with the general population, not with people in retail.
Wal-Mart's obligation under Title VII is to ensure that its managers do not make pay decisions because of sex, and the comparison that's relevant is between men and women at Wal-Mart, not the general population that includes people in retail, but includes railroad workers and all kinds of other people.
That's not the appropriate comparison.
Justice Anthony Kennedy: It's not clear to me: What is the unlawful policy that Wal-Mart has adopted, under your theory of the case?
Mr. Sellers: Justice Kennedy, our theory is that Wal-Mart provided to its managers unchecked discretion in the way that this Court's Watson decision addressed that was used to pay women less than men who were doing the same work in the same -- the same facilities at the same time, even though -- though those women had more seniority and higher performance, and provided fewer opportunities for promotion than women because of sex.
Justice Anthony Kennedy: It's -- it's hard for me to see that the -- your complaint faces in two directions.
Number one, you said this is a culture where Arkansas knows, the headquarters knows, everything that's going on.
Then in the next breath, you say, well, now these supervisors have too much discretion.
It seems to me there's an inconsistency there, and I'm just not sure what the unlawful policy is.
Mr. Sellers: Well, Justice Kennedy, there is no inconsistency any more than it's inconsistent within Wal-Mart's own personnel procedures.
The company provides to its managers this discretion, which, by the way, is very discrete.
It is not the broad kind of -- we're not attacking every facet of the pay and promotion decisions.
The District Court found specific features of the pay and promotion process that are totally discretionary.
There's no guidance whatsoever about how to make those decisions.
But with respect to the discretion, every store, the District Court found, is provided -- managers are provided with the same level of discretion.
But the company also has a very strong corporate culture that ensures that managers, not just with respect to the practices we're challenging, but in all respects, what they call the Wal-Mart way, and the purpose of that is to ensure that in these various stores that, contrary to what Wal-Mart argues, that these are wholly independent facilities, that the decisions of the managers will be informed by the values the company provides to these managers in training--
Justice Anthony Kennedy: Well, is that disparate treatment?
Mr. Sellers: --It is disparate treatment.
It is a form of disparate treatment because they are making these decisions because of sex, and they -- and they are doing so with -- we have evidence that we think, through the stereotyping evidence we have here, as well as the statistical results--
Justice Antonin Scalia: I don't -- I'm getting whipsawed here.
On the one hand, you say the problem is that they were utterly subjective, and on the other hand you say there is a -- a strong corporate culture that guides all of this.
Well, which is it?
It's either the individual supervisors are left on their own, or else there is a strong corporate culture that tells them what to do.
Mr. Sellers: --Well, Justice Scalia, there is this broad discretion given the managers.
Justice Antonin Scalia: Right.
Mr. Sellers: But they do not make these decisions in a vacuum.
They make the decisions within a company where they are heavily--
Justice Antonin Scalia: So, there's no discretion; is that what you're saying?
Mr. Sellers: --No, I'm not.
I'm suggesting they are given this discretion, but they are informed by the company about how to exercise that discretion.
So, it's effectively saying--
Justice Antonin Scalia: If somebody tells you how to exercise discretion, you don't have discretion.
Mr. Sellers: --Well, all right.
That's another -- it's certainly -- the bottom line is, they didn't, and the results show it.
There was consistent disparities in every one of the regions, 41 regions.
Justice Antonin Scalia: What do you know about -- about the unchallenged fact that the central company had a policy, an announced policy, against sex discrimination, so that it wasn't totally subjective at the managerial level?
It was, you make these hiring decisions, but you do not make them on the basis of sex.
Wasn't that the central policy of the company?
Mr. Sellers: That was a written policy.
That was not the policy that was effectively communicated to the managers.
Justice Antonin Scalia: Now, how was -- how was that established?
Mr. Sellers: Well, what we have, as I said before, is evidence of -- for instance, at the -- at the Sam Walton Institute, where every manager has to be trained before they become a manager, they provide as a question -- a response to a standard question: Why are women so underrepresented, or so few women in management?
And the response given was, because men seek advancement, are more aggressive in seeking advancement.
Now, that's a typical, stereotypical statement provided to every person going through the management training program, that they then go off and inform -- that informs their decisions when they make -- when they have this discretion to make promotions.
Justice Antonin Scalia: And that causes them intentionally to discriminate on the basis of sex?
Mr. Sellers: That's -- that is--
Justice Antonin Scalia: That causes -- how could that possibly cause them to intentionally discriminate on the basis of sex?
Mr. Sellers: --Well, they -- they have -- they have an intent to take sex into account in making their decisions; that is -- that is, they apply a stereotype about that women are less aggressive when it comes to assessing their suitability for promotions.
Justice Antonin Scalia: That -- that's just an assessment of why the percentage is different.
They differ not only at Wal-Mart, but at -- throughout the industry.
To say that that's the explanation is not to tell your people: Don't promote women.
Mr. Sellers: Right.
Justice Antonin Scalia: If you have an aggressive woman, promote her.
Mr. Sellers: I understand that, and there were -- there have been women promoted.
But Justice Scalia, first of all, we think that that is -- the questions you are raising are ones that Wal-Mart can raise at trial.
The question at this juncture is whether there are -- there are questions common to the class.
We've identified what has been recognized as a -- a common policy, that there's no dispute this policy applies throughout the company.
And the fact that we, at this juncture, are -- I mean, and we have shown, as we think we have to in order to satisfy commonality, that there are disparities adverse to women.
And we have the means to show, through the testimony of Dr. Bielby and other evidence, that we can provide this -- connect these two through--
Justice Antonin Scalia: Have you sufficiently shown -- despite the fact of an explicit written central policy of no discrimination against women, do you think you've adequately shown that that policy is a fraud, and that what's really going on is that there is a central -- a central policy that promotes discrimination against women?
Do you really think--
Mr. Sellers: --We -- we have testimony in the record from the vice president of the company that that policy was lip service at the company.
We have testimony from -- from the expert in this case--
Justice Ruth Bader Ginsburg: Isn't this something that would be -- I mean, this -- we're not just talking about getting your foot in the door.
We're talking about certifying the class, and you may well lose on every one of these points, but -- but the 23(a) standards, they're not supposed to be very difficult to overcome.
It's just a common question of fact--
Mr. Sellers: --That is--
Justice Ruth Bader Ginsburg: --that dominates at that--
Mr. Sellers: --I'm sorry.
Justice Ruth Bader Ginsburg: --But what seems to me is a very serious problem in this case is: How do you work out the back pay?
You say -- we get through the 23(a) threshold.
We got class certified under 23(b)(2).
And the judge says, there's no way I could possibly try each of these individuals.
So, we're going to do it how?
How are they going to calculate the back pay?
Mr. Sellers: Well, the -- the approach that the District Court endorsed, an approach we recommended, and which has been endorsed by seven circuits over a period of 40 years, is in circumstances here -- like here, which are, admittedly, the exception to the rule, where the company had no standards by which to make promotion and pay decisions, they had kept no records of who -- the reasons for people being promoted and the reasons why they pay people certain amounts, that as a consequence of that, the Albemarle decision and the Teamsters decision make clear that the obligation of the District Court upon finding of liability is to attempt to reconstruct the decisions that would have been made in the absence of discrimination.
And the District Court found here -- and we submit it's not clearly erroneous -- that the more reliable method for doing so is to use a formula relying on Wal-Mart's robust database in which it captures performance, seniority, and a host of other job-related variables, factors that bear on pay and promotion decisions, and permits a comparison, a very precise comparison, in a way that having individual hearings relying on hazy memories, post hoc rationalizations, doesn't.
Chief Justice John G. Roberts: What if you had a situation where you had a company with a very clear policy in favor of equal treatment of men and women?
You know, the answer to your -- the answer to your question was women don't have as many positions because managers discriminate against them in -- in hiring and in promotion, yet you still have the same subjective delegation system.
Could you have a class of women who were harmed by this subjective policy, even though it was clear that the policy of the corporation favored equal employment opportunity?
Mr. Sellers: Well, I think if the -- if there were -- as clear as your hypothetical suggest, that the company had a policy of that sort, it would be appropriate for it to seek summary judgment.
Chief Justice John G. Roberts: No, no, no, they still -- well, then you're saying it is not enough that it be a subjective decision.
This company has a thousand stores, and sure enough in a thousand stores you're going to be able to find a goodly number who aren't following the company's policy, who are exercising their subjective judgment in a way that violates the right to equal treatment.
Couldn't you bring a class of people subjective to discrimination as a result of that subjective policy?
Mr. Sellers: You could bring a class case on behalf -- if I understand your hypothetical -- on behalf of women -- I'm sorry -- who were subject to discrimination as a consequence of that unchecked discretion.
I -- I want to be clear that we shouldn't lose sight of the fact that we have evidence here of results from this that are, that are really extraordinary.
Justice Stephen G. Breyer: Is the -- is the common question of law or fact whether, given the training which central management knew--
Mr. Sellers: Right.
Justice Stephen G. Breyer: --given the facts about what people say and how they behave, many of which central management knew, and given the results which central management knew or should have known, should central management under the law have withdrawn some of the subjective discretion in order to stop these results?
Mr. Sellers: That -- that is a fair way to put it.
Justice Stephen G. Breyer: If that is a fair way to put it, is that a question that every one of the women in this class shares in common?
Mr. Sellers: I -- I believe so, Justice Breyer, because they've all been the subject in every one of these stores to this very broad discretion.
Justice Ruth Bader Ginsburg: The district judge didn't think so.
Didn't the district judge say that in awarding back pay some would get a windfall and others would be uncompensated?
Mr. Sellers: Actually, Justice Ginsburg, I -- I think the district judge did not find that.
What he found was that the formula, and I can assure you the formula we intend -- would tend -- tend to use is a regression analysis that would permit a comparison between each woman and the amount she was paid and similarly situated men, taking into account, as I said, performance and seniority and the like, and you will find there are women that were not underpaid and the formula will show that they should get no back pay.
I think that the district court--
Justice Ruth Bader Ginsburg: I thought -- I thought his point was not simply that some women were not underpaid, but women, if you had an individual case, the employer might show this person could have been fired, disciplined, and wasn't owed any back pay, not that she compares favorably to a -- a male peer, but that she wouldn't have gotten any pay at all.
Mr. Sellers: --Well, Justice Ginsburg, the kind of factors that are entered into this -- this economic model, performance in particular, should capture whether somebody should have been fired.
That -- that is a very important part of the model here that permits people to -- and we found -- the evidence shows that women were, in fact -- had higher performance than men and were nonetheless still underpaid.
Justice Antonin Scalia: --Can I just say something here?
Doesn't your class include both those women who were underpaid and both -- and those women who weren't underpaid?
Mr. Sellers: That's--
Justice Antonin Scalia: Doesn't your class include both?
Mr. Sellers: --As every--
Justice Antonin Scalia: Is that commonality?
Mr. Sellers: --As every class does, Justice Scalia.
Every class has some portion of its members who are not harmed by the discrimination.
As the Teamsters case recognized, what is common about them is they were all subject to the same highly discretionary decisionmaking, even if some of them weren't harmed by it.
That still presents a question common to the class.
Justice Anthony Kennedy: Well, correct me if I'm wrong, I thought the Teamsters case was an action by the government that wasn't a class action case.
Mr. Sellers: That -- that is correct, but it -- it -- it is the paradigm we use for determining what you need to establish a pattern or practice of discrimination.
Justice Anthony Kennedy: Pattern or practice, that's correct.
Help me, if you can, with this.
Let's -- let's suppose that experts' testimony, sociologists and so forth, establish that in industry generally and in retail industry generally, women still are discriminated against by a mathematical factor of X.
You have a company that has a very specific policy against discrimination, and you look at their -- the way their employees are treatment -- are treated, and you find a disparity by that same mathematical factor X, does that give you a cause of action?
Mr. Sellers: If the -- I'm sorry -- if the -- it, the disparity--
Justice Anthony Kennedy: The -- the -- the disparity with -- that women are subjected to are the same in the company as they are--
Mr. Sellers: --Outside the company.
Justice Anthony Kennedy: --society wide, but the company does have a policy against discrimination.
Mr. Sellers: Right.
I -- I would say that the company's responsibility under Title VII is to ensure its managers do not make pay and promotion decisions because of sex.
If the comparison between the pay women receive, for instance, who are similarly situated to men within the company is such that they are underpaid compared to similarly situated men in the company, then -- then the company would have legal responsibility under Title VII, regardless of what happens in the rest of the industry, what happens in the rest of the world.
Justice Anthony Kennedy: Would that be true even if you could not show deliberate indifference?
Mr. Sellers: Well, I don't know that the -- the respect that the standard is deliberate indifference.
I think that under this Court's decision in Heller--
Justice Anthony Kennedy: Suppose there's no deliberate indifference and a specific policy prohibiting the discrimination, can you still proceed?
Mr. Sellers: --I -- well, I would submit you still can proceed.
If -- if the policy -- announcing a policy saying don't discriminate were to be effective in -- in immunizing companies against liability in class actions, imagine every company in the country would publish that policy and have free license to go discriminate as much as it wanted to.
Justice Samuel Alito: I understand your answer to Justice Kennedy's question to be that this typical company would be in violation of Title VII; is that correct?
Mr. Sellers: That's correct.
Justice Samuel Alito: That's what the -- and that's what the academic literature on which your theory is based includes; isn't that right?
Mr. Sellers: With -- Justice Alito, I think it's not just academic literature, I think it's the precedents from this Court.
I think that's the -- that's the premise behind Teamsters, that the -- you look to in Hazelwood, which makes very clear that you don't look to populations outside the company in making comparisons.
Justice Samuel Alito: So, you have the company that is absolutely typical of the entire American workforce, and let's say every single -- there weren't any variations.
Every single company had exactly the same profile.
Then you would say every single company is in violation of Title VII?
Mr. Sellers: It -- that could very well be the case.
If -- if the -- I think that Title VII holds companies responsible for the actions they take with respect to their employees.
There certainly are industries, and there were 30 years -- many more 30 or 40 years ago when Teamsters was decided, where the entire industry might have had evidence of discrimination.
That would not -- there is not a negligence standard under this statute that immunizes companies because they follow the same standards as others.
Justice Antonin Scalia: What -- what -- what -- what's -- what's your answer assumes is if there is a disparity between the advancement of women and the advancement of men, it can only be attributed to sex discrimination--
Mr. Sellers: No.
Justice Antonin Scalia: --Well, otherwise, how could you say that all -- all of the companies are -- are -- are presumptively engaging in sex discrimination?
Mr. Sellers: Well, Justice Scalia, I -- I -- I want to deal with the -- in this instance, we have -- it's not just any old analysis that we're -- that we're using.
We have statistical regression analysis that isolates and takes into account the factors such as performance and -- and seniority.
Justice Antonin Scalia: See, I wasn't talking about this case.
I was talking about your answer to Justice Alito--
Mr. Sellers: I'm sorry.
Justice Antonin Scalia: --which said that, you know, it may well be that every industry in the United States is guilty of sex discrimination--
Mr. Sellers: Well, I--
Justice Antonin Scalia: --unless there -- you know, there -- there's equality of promotion for men and women.
Mr. Sellers: --No, I -- I don't -- I don't take that position, Justice Scalia.
What I was trying to make clear is that the fact that there are other companies in the same industry where the same problems may arise, which, by the way, wasn't true here, where Wal-Mart was behind the other large retailers, doesn't mean that a company is any less liable for the discrimination practiced in its own workplace.
I can't speak for the rest of society, I don't have any reason to think the entire society is engaging in employment discrimination.
Justice Sonia Sotomayor: Counsel--
Justice Elena Kagan: Mr. Sellers, could I take you back to the remedial question here--
Mr. Sellers: Yes.
Justice Elena Kagan: --and when you think it is that individualized hearings are required?
You've described a kind of formula that you would use.
When -- when -- when is the formula approach right and when is the individual hearings approach right?
Mr. Sellers: Well, I think it's a -- it's a call that, of course, we leave -- we should leave to the district court in the first instance, but factors that could weigh in the balance would include whether or not you have available the kind of information that we do here from database with which to be able to more reliably construct the -- the kinds of decisions that would have been made in the absence of discrimination.
Likewise, there may be companies where they have kept better records or kept any records or have more substantial standards that would permit the reconstruction of those decisions through individual hearings.
I don't think this is something that -- I'm not contending that under -- that you could always use a formula-like approach in connection with these cases.
This is an extraordinary case with evidence that is -- that they have kept really no standards and no records.
Justice Ruth Bader Ginsburg: I thought, didn't the district judge say because of the numbers we couldn't -- couldn't possibly have the hearing in each case on whether the particular woman was owed back pay?
They did say something about this.
Mr. Sellers: The district -- I'm sorry, the district court did make the comment that the sheer number of class members would make the administration of individual hearings difficult, but the district court went on, very importantly--
Justice Ruth Bader Ginsburg: I thought he said "impossible".
Mr. Sellers: --Sorry?
Justice Ruth Bader Ginsburg: I thought he said more than difficult.
Mr. Sellers: Well, he may have said impossible, but the important point is that he went -- the district court went ahead and made specific findings about the extent to which the -- the particular record here shows that the use of a formula would be more reliable than individualized hearings.
Justice Sonia Sotomayor: --Counsel, I'm -- I'm a little confused, all right?
Mr. Sellers: Okay.
Justice Sonia Sotomayor: Because you're saying an individualized hearing is impossible, but that's exactly what you're saying you're going to do, only through statistics.
Mr. Sellers: That's--
Justice Sonia Sotomayor: You're going to say through my statistical model, I will be able to identify those women in the class who are deserving of pay raises.
What that doesn't answer is when in this process is the defendant going to be given an opportunity to defend against that finding?
Mr. Sellers: --Right.
Justice Sonia Sotomayor: Because you're -- are you suggesting that the district court would appropriately bar a defendant where there's no proof of intentionality with respect to not keeping records, that it was intended to stop these women from collecting money, et cetera?
When are they going to get a chance?
Mr. Sellers: Well--
Justice Sonia Sotomayor: And if they're going to get a chance, isn't that an individualized hearing?
Mr. Sellers: --Yes.
Effectively Wal-Mart will have ample opportunity through the arguments over which variables which to use.
There was a very robust debate below already about which variables to use, that will have a significant impact on whether women are shown to be underpaid or underpromoted compared to men.
So, Wal-Mart will have that opportunity, and frankly--
Justice Sonia Sotomayor: No, no, no.
That sounds like you're saying their only opportunity will be on the model.
Mr. Sellers: --I'm--
Justice Sonia Sotomayor: They will be precluded from attempting to show any particular evidence that a particular decision was not made?
Mr. Sellers: --If Wal-Mart -- if Wal-Mart, Justice Sotomayor, if a Wal-Mart comes forward below and it hasn't done so, so far, and is able to persuade the district court that it can, consistent with some kind of -- in a way that's consistent with a reliable determination of who should have been paid what and promoted in the absence of discrimination--
Justice Sonia Sotomayor: You're not answering me.
Mr. Sellers: --I'm trying to.
Justice Sonia Sotomayor: You're -- what you're saying is we're going to preclude them from doing anything but offering a mathematical model--
Mr. Sellers: I'm -- I'm--
Justice Sonia Sotomayor: --because otherwise it's going to be too hard to have individual hearings.
Mr. Sellers: --I -- I'm -- let me answer you directly.
I'm not saying that.
Wal-Mart has an opportunity to make the case that with whatever showing it wishes to make it can reconstruct these decisions more reliably, and in an entirely subjective environment, and if it does, it can offer evidence in certain circumstances; but it hasn't done so; and I don't submit it's going to be able to do so here.
Justice Antonin Scalia: This -- this takes evidence, to establish that -- that it's more reliable to have a hearing with evidence on the particular promotion or dismissal of the individual, that that is more reliable than using -- I don't care how admirable a statistical guess you make; I mean is that really a question?
Mr. Sellers: I think it is, Justice Scalia, because the--
Justice Antonin Scalia: We must have a pretty bad judicial system then.
Mr. Sellers: --Well, I think it's not the judicial system, it's the recordkeeping of the company, and the standardlessness of its -- of the pay and promotion processes that basically mean 10 years later, these managers are going to be coming forward to speculate about what they did 10 years earlier, with no records to cross-examine them on.
That is not the -- the model for a reliable adjudication.
Chief Justice John G. Roberts: Counsel--
Justice Antonin Scalia: We should use that in jury trials, too, for really old cases.
We should just put a statistical model before the jury and say, you know, this stuff is too old; so, we'll--
Mr. Sellers: Well--
Justice Antonin Scalia: --we'll do it on the basis of -- is this really due process?
Mr. Sellers: --I -- Justice Scalia, I submit it is; and the circuits that have been considering this for 40 years have so held.
In the narrow set of circumstances that we have here, where there are standardless, recordless decisions at issue.
Justice Anthony Kennedy: Well, if it's standardless and -- and recordless, then why is there commonality?
It seems to me that what you -- your answer that you just gave really is a -- shows a flaw in your case on commonality.
Mr. Sellers: No, Justice Kennedy, the -- the standardless and recordless aspect is with respect to trying to reconstruct these decisions years later.
As I said before, we have a common policy here; it presents a common question.
We've shown evidence that would probably create a prima facie case of pattern or practice under Teamsters, and we think we've satisfied the three components of commonality that we think need to be addressed.
Justice Ruth Bader Ginsburg: One thing you haven't touched on is to -- to have, first of all the question of whether (b)(2) is limited to injunction and declaratory relief.
Mr. Sellers: Yes.
Justice Ruth Bader Ginsburg: But if -- if you follow the advisory committee's note, then if dollars -- if damages predominates -- if damages predominate, then you can't use (b)(2).
You have to make your case under (b)(3); and the one factor here is that about half the class is gone, so -- they're not interested in injunctive relief, but everybody's interested in money.
So, why isn't the money -- why do you say that the -- that the injunction -- injunctive relief is the thing and the damages are lesser, rather than the other way around?
Mr. Sellers: Well--
Justice Antonin Scalia: In fact it's more than half the class that's gone, isn't it?
Mr. Sellers: --Well, I don't -- nobody knows that, because they continue to have more employees adding -- added at the company.
So, I wouldn't presume--
Justice Antonin Scalia: But nobody's leaving yet.
Mr. Sellers: --Well, there are people leaving, but the point -- but more importantly, the advisory committee note with respect to Rule 23(b)(2) makes clear that there is a -- that the -- whether or not an action or inaction is taken with respect to the class which is the predicate to (b)(2) certification, it depends on -- it doesn't depend on the number of people who are adversely affected by that action.
And so, as a consequence where the former employees are -- that they -- if they would be included in the class under (b)(2) because that -- the question is not on a day-to-day basis who should have been in a position to seek injunctive relief and who's employed and who's not.
Chief Justice John G. Roberts: --Thank you, counsel.
Mr. Sellers: Thank you.
Chief Justice John G. Roberts: Mr. Boutrous, you have 4 minutes remaining.
REBUTTAL ARGUMENT OF THEODORE J. BOUTROUS, JR., ON BEHALF OF THE PETITIONER
Mr. Boutrous Jr.: Thank you, Mr. Chief Justice.
Let me begin with this question of back pay because Mr. Sellers has made clear under their vision Wal-Mart would never have an opportunity to prove that it didn't discriminate against a woman who was seeking back pay; and the district court did not suggest that it might be difficult, as Mr. Sellers suggested.
The district court, as Justice Ginsburg suggested, said that he found it would be impossible; not just because of the number of people, but because of the nature of the claims, that discretionary decisions were being implemented in a way that affected different people differently.
The -- the problem here Mr. Sellers says is that the records are not available.
Then he says we're going to have a -- a proceeding where the district judge relies only on the records, that he says are inadequate, to allow a reconstruction of the decision.
That is not a process known to our jurisprudence.
It doesn't comport with due process.
It takes away Wal-Mart's rights under Title VII; it injures the rights of the individual women, who the record--
Justice Sonia Sotomayor: You don't -- you don't seriously contend that if a plaintiff, if a policy were found or practice of discrimination that a woman couldn't come in and say they put X in, I had a longer history at Wal-Mart, I had far superior job ratings, I had no criticisms of my work, and I wasn't promoted.
Wouldn't that be enough for her to show that that policy influenced her lack of selection?
Mr. Boutrous Jr.: --I agree with you, Justice Sotomayor.
Justice Sonia Sotomayor: And your personal database has all that information.
So, why is it impossible to try these cases other than because of their large numbers?
That's a different issue.
Mr. Boutrous Jr.: --Yes, Your Honor, what you've just outlined, we agree that a woman should be able to come in and say that, and she may say well, the records don't show what really happened.
I -- I had more experience; I was a much better employee than the guy working next to me.
Under the plaintiff's theory in order to get a class here, they have thrown that out the window; that woman would not be able to come and testify.
Wal-Mart wouldn't be able to say this person was a terrible employee, this person was a great employee.
On the record, it's not impossible to recreate these decisions.
The record is filled with declarations from managers who remember very well that Ms. Dukes violated company policy, that Ms. Arana was fired for infractions regarding how she kept her hours.
Justice Stephen G. Breyer: If you just spend one second, remember my question.
We've got a common issue.
Why isn't that enough at least to support a (b)(2) injunctive action?
Mr. Boutrous Jr.: Your Honor, the -- the scenario you outline -- there's no dispute about the policies that existed at the time, that there were--
Justice Stephen G. Breyer: That sounds like the merits you're getting to.
His point, remember, is this is just certification.
So, my question is: Assuming they can support it with evidence, why can't they have their (b)(2) class, at least on an injunctive relief?
Mr. Boutrous Jr.: --Because, Your Honor, the -- the common policy is one that affects everyone differently by definition.
Therefore, these plaintiffs are not typical, and they are not arguing that everyone was affected the same way by the common policy.
Many women thrived.
Maybe some men stereotyped or some women stereotyped the other direction.
Five hundred and forty-four of the plaintiffs are female store managers.
So, it's impossible to make these sweeping generalizations, which, of course, is what stereotyping is supposed to prevent.
And so, it's -- there's absolutely no way there can be a fair process here.
On the policy question, the policy -- the plaintiffs point to the general policies and the central control, but the one policy they do not want to confront is the policy against discrimination.
It was not just a written policy on paper.
In fact, the -- there's a declaration at page 1576 of the Joint Appendix that lays out the very aggressive efforts the company--
Justice Antonin Scalia: What about the vice president that said it was just window dressing or something like that?
Mr. Boutrous Jr.: --I'm glad you asked about that, Justice Scalia.
Here's what he said.
He testified about the diversity goals of the company at the time, the effort to get more women into management, and he said in his view, until the company linked diversity goals to compensation of managers, it would be lip service.
He wasn't saying the whole program was lip service.
He was one of the advocates for diversity in the company.
He wanted to be more aggressive.
He said his -- his goals were 20 percent and other people's were 10.
So -- so, it's completely misleading to suggest he was -- he was denigrating the entire policy.
Justice Sonia Sotomayor: I think he's just making your -- their point, which is if they started paying women the same as men, they might get more diversity.
Mr. Boutrous Jr.: They do pay the same as men, Your Honor.
The record reflects that.
Justice Sonia Sotomayor: Well, that's the whole issue that's in dispute.
Mr. Boutrous Jr.: Thank you.
Chief Justice John G. Roberts: Thank you, counsel.
The case is submitted.
Justice Antonin Scalia: This case is here on writ of certiorari to United States Court of Appeals for the Ninth Circuit.
It concerns one of the most expansive class actions in our history.
Respondents, women who are current and former employees of petitioner Wal-Mart, brought this suit against the company on behalf of themselves and a nationwide class of some 1.5 million female employees.
They alleged that Wal-Mart's local managers exercise their considerable discretion over pay and promotions disproportionately in favor of men in violation of the disparate impact and disparate treatment prohibitions of Title VII of the Civil Rights Act of 1964.
Their suit seeks injunctive and declaratory relief, punitive damages and backpay.
The District Court certified respondents' proposed class after finding that it satisfied the requirements of Federal Rules of Civil Procedure 23(a) and 23(b)(2).
On appeal, the Ninth Circuit made a few modifications to the class but substantially affirmed the District Court's certification order.
We granted certiorari to decide whether the class was properly certified.
We conclude that it was not, for two independent reasons.
The first reason is addressed in Part II of my opinion for the Court, which is concurred in by the Chief Justice and Justices Kennedy, Thomas and Alito.
Federal Rule of Civil Procedure 23(a)(2) requires a party seeking class certification to demonstrate that "there are questions of law or fact common to the class".
To satisfy that Rule, a plaintiff's claims must depend upon a common contention that is capable of classwide resolution which means that determination of its truth or falsity will resolve in one stroke an issue that is central to the validity of each one of the claims.
Wal-Mart is the nation's largest private employer.
It operates four types of retail stores throughout the country which are divided into seven nationwide divisions and subdivided into 41 regions of 80 to 85 stores apiece.
Each store has between 40 and 53 separate departments and 80 to 500 staff positions.
In all, Wal-Mart operates approximately 3400 stores and employs more than 1 million people.
Because respondents wish to sue about literally millions of employment decisions at once, they need some glue holding the alleged reasons for all those decisions together.
Otherwise, it will be impossible to say that an examination of all the class members' claims for relief will produce a common answer to the question that matters to Title VII, why was I disfavored?
One of our prior cases, General Telephone Company of Southwest versus Falcon describes how the commonality issue must be approached.
That case explained that there is a wide gap between an individual's claim of discrimination and the existence of a class of persons who have suffered the same injury as that individual, so that the individual's claim and the class claim will share common questions of law or fact.
On the facts of this case, according to Falcon, bridging that game -- bridging that gap requires "significant proof" that Wal-Mart "operated under a general policy of discrimination".
That proof is entirely absent here.
As respondents acknowledge, Wal-Mart's official corporate policies forbid sex discrimination.
The only direct evidence of a general policy of discrimination respondents produced was the testimony of a sociologist, who concluded that Wal-Mart's strong corporate culture made the company "vulnerable" to gender bias.
But that sociologist admitted that he could not calculate whether -- "whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking".
So his testimony is worlds away from the significant proof of a discriminatory policy that Falcon requires.
Indeed, 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 human -- of a uniform employment practice that would provide the commonality needed for a class action.
It is a policy against having uniform employment practices, that one particular supervisor exercises his discretion in a discriminatory way, does -- does nothing to establish -- be patient, that any other manager does so.
In a company of Wal-Mart's size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction.
Respondents attempt to make that showing by means of statistical and anecdotal evidence, but reasons we explain in our opinion, their evidence falls far short.
We therefore first conclude that the plaintiff class was improperly certified under Rule 23(a).
The second independent reason why this certified class was improper is set forth in Part III of the opinion for the Court which is unanimous.
The District Court certified this class under Rule 23(b)(2), which applies when "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole."
But the plaintiffs' claims are not limited to the kinds of relief named in that Rule.
Besides injunctive relief or corresponding declaratory relief, they seek awards of backpay that is money to individual class members.
We have previously expressed out that any monetary claims can be certified under Rule 23(b)(2).
We need not resolve that broader question, however, because we conclude that at a minimum, claims for individualized monetary relief, like -- like a backpay at issue here, do not satisfy the Rule.
As our opinion explains, the key to a (b)(2) class is the indivisible nature of the relief requested.
The notion is that the defendants' conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.
Just as (b)(2) does not authorize certification when each class member would be entitled to a different injunction, neither does it apply when each class member seeks individualized award of money.
That interpretation accords with the historical antecedents of -- of the (b)(2) and with the overall structure of the Rule.
We conclude that class actions to recover backpay belong instead in Rule 23(b)(3).
That Rule contains several procedural protections that the (b)(2) class does not.
Protections that are particularly important when individual money claims are at stake.
In a (b)(3) class, the District Court is required to provide absent class members with notice of the lawsuit and an opportunity to opt-out of the class.
And it is required to find that common issues predominate over individual issues, and that class treatment is a superior method of adjudication.
These findings are considered unnecessary to a (b)(2) class, but they are indispensable when individualized claims are at stake.
The Fifth Circuit has suggested that monetary relief can be part of the (b)(2) class if it is incidental to the injunctive or declaratory relief requested.
We need not decide that question today because respondents' backpay claims are not incidental to anything.
Because Title VII provides Wal-Mart with certain statutory defenses to backpay that it is entitled to -- to litigate as to each employee, resolving those claims will require individualized determinations of liability.
The Ninth Circuit believed it was possible to replace these proceedings, these individualize adjudications, with a sort of Trial by Formula under which, entitlement to backpay and the amount of entitlement would be calculated for a sample set of the plaintiffs and those results then extrapolated over the entire 1.5 million class.
We disapprove that project.
The Rules Enabling Act forbids interpreting the federal rules to "abridge, enlarge or modify any substantive right" including Wal-Mart's statutory defenses.
Wal-Mart is in entitled to litigate those defenses and the necessity of that litigation demonstrates that respondents' backpay claims are not incidental.
For these and other reasons set forth more fully in our opinion, the judgment of the Court of Appeals is reversed.
Justice Ginsburg has filed an opinion concurring in part and dissenting in part in which Justices Breyer, Sotomayor and Kagan have joined.