A Grudging Defense of Wal-Mart v. Dukes

The Supreme Court's denial of class certification in Wal-Mart v. Dukes has been viewed by many as a wholesale rejection of the use of discrimination law for social change. In this Article, I argue that the Supreme Court would have been open to certification had the plaintiffs given more careful attention to the difficult doctrinal and normative issues raised by their case. The plaintiffs' evidence suggested significant problems with the treatment of women at Wal-Mart, but these facts were never tied in any systematic way to a plausible theory of liability under Title VII of the Civil Rights Act of 1964. The Wal-Mart Court squarely endorsed the view already adopted by many lower courts that the common interests required for class certification can be established only by some examination of the theory to be advanced at trial. Wal-Mart was a structural lawsuit, one that challenged features of the workplace that are alleged to produce discriminatory outcomes. Structural suits, especially those challenging delegated discretion, raise far more difficult issues that the canonical discrimination case, which focuses on outcomes rather than on employer practices, and which alleges a clear intent to discriminate. Structural claims will be politically and morally acceptable only if they are based on a notion of employer fault such as negligence that is intermediate between strict liability and intentional discrimination. Although current Title VII doctrine does not directly provide for intermediate levels of fault, legal scholars have proposed several thoughtful approaches that would extend existing law to allow for negligence liability. Plaintiffs could have used these theories, in conjunction with an emphasis on Title VII's "pattern or practice" provision, to construct a strong argument that members of the putative class in Wal-Mart had claims that were tied together by common questions of fact and