Before the Supreme Court is a massive class of as many as 1.6 million current and former female Wal-Mart employees claiming pay and promotion discrimination based on sex. Federal rules require that the legal and factual claims and defenses be sufficiently common. Wal-Mart claims it is not possible for 1.6 million people to have the same discrimination experience.

A class action lawsuit is where a representative plaintiff may sue on behalf of a group of similarly affected people who are not in fact plaintiffs.  Federal civil procedure rules set out four basic requirements to certify a class action lawsuit: (1) the class must be so large as to make individual suits impractical (numerosity), (2) there must be legal or factual claims in common (commonality), (3) the claims or defenses must be typical of the plaintiffs or defendants (typicality), and (4) the representative parties must adequately protect the interests of the class (adequacy).

In this case two additional considerations apply including whether common issues between the class and the defendant will predominate the proceedings, or whether there are different fact-specific considerations that apply to each class member.  The court will then ask the question of whether a class action rather than individual litigation brought by each class member is a better way to resolve the disputes.

The Supreme Court heard oral argument in the Wal-Mart v. Dukes case on March 29, 2011.  The Justices seemed troubled with the plaintiffs' heavy use of statistics to make the case that more than one million current and former female Wal-Mart employees suffered discrimination.  Wal-Mart's attorney argued that allowing the plaintiffs to use the models relieves the women of actually proving they suffered biased treatment and stops the company from being able to defend itself from the claim of bias.

The attorney representing the class of female employees is Joseph M. Sellers of Cohen Milstein in Washington D.C.  Sellers argued that Wal-Mart gave store managers "unchecked discretion" that they used to discriminate.  But then he also said that there is a "very strong corporate culture" and company values that encouraged discrimination.

Sellers noted that store managers are trained at the company's Sam Walton Institute where they are told to take sex into account as a stereotype and that women who should get promotions are ones who are more like men and who are aggressive.

Justice Scalia suggested a contradiction between a centralized corporate command and store managers having unfettered discretion:

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 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.

The oral argument (audio file above) is highly entertaining as the Justices give both Sellers and Wal-Mart's attorney Theodore J. Boutrous, Jr. a shellacking on not completely gender neutral grounds.

While this case is very interesting, it is as yet unclear if it will present some new legal guidance, or if the court's decision will be fairly limited to the facts of the case.  Many Supreme Court watchers anticipate a sweeping decision erecting new barriers to large class actions in employment cases, or perhaps even in a broader array of cases where at least arguably the individual class members claims are fact-specific.

At issue in Walmart v. Dukes is whether the fact of discrimination can be reduced to a statistical phenomenon.  The plaintiff female employees are armed with significant statistical proof that sex-based pay and promotion discrimination is widespread at Wal-Mart.  But the question of whether a specific store manager made a pay or promotion decision based on the sex of a specific employee may or may not be appropriately answered by statistical evidence.

Class action suits over wage and hour claims, for example for failure to pay overtime, tend to be more easily explained to the courts.  Such questions are mathematical and the facts are very common across plaintiffs.  But even in wage and hour cases, the question of whether a specific manager gave the impression to a specific worker that he was not free to take a break is at least arguably a question that may not be answered precisely the same from worker to worker.

The deeper policy question is whether courts should encourage class action suits in an effort to level the playing field.  It was the courts that said corporations had the same rights as individual citizens.  Since the first Supreme Court decisions giving corporations the same rights as individuals, many corporations have grown quite large.  The legal status of corporations that allows the number and wealth of shareholders and management to act collectively with the right of a single super-individual has tilted the playing field in every area of government from elections and drafting legislation to the right to pursue relief in the courts.

Indeed, if Wal-Mart loses, it's quite possible Congress will pass a law to stop future actions of this type just like it passed the Class Action Fairness Act of 2005, 28 U.S.C. Sections 1332(d), 1453, and 1711-1715.  The power and wealth available to Wal-Mart because the courts recognize its legal right as an individual is incalculably greater than the wealth and power at the disposal of any one of its employees.