Put Up Your Dukes: Supreme Court Ruling in Wal-Mart Gender Case Strikes Body Blow to Plaintiffs’ Class Action Bar


The U.S. Supreme Court in Dukes v. Wal-Mart, 564 U.S. – (June 20, 2011), reversed a ruling by the U.S. Court of Appeals for the Ninth Circuit that had certified a nationwide gender discrimination class action against Wal-Mart. As previously certified, the class included approximately 1.5 million women who had worked for Wal-Mart dating back to December 25, 1998. The plaintiffs allege that Wal-Mart discriminates against women in terms of pay and promotions. Justice Antonin Scalia wrote the Court’s opinion, in which the conservative block of four justices plus Justice Anthony Kennedy as the swing vote joined fully. The remaining four justices concurred in part and dissented in part, with Justice Ruth Bader Ginsburg writing that the majority opinion went to far in disqualifying class actions “at the starting gate.”

While the sheer size of Wal-Mart as the world’s largest private employer presented unique challenges, the Court’s analysis can be applied broadly to class actions asserting discrimination based on a theory of delegation of decision-making authority to local managers. Having faced and defeated the lead counsel and team of experts from Dukes in their efforts to certify nationwide class actions against other employers, we were familiar with the major issues in play. As discussed in the attached link, the Court gave employers everything they could have hoped for, and more.

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