Throughout Tuesday’s oral argument in Dukes v. Wal-Mart, the Justices appeared to divide along expected ideological lines. The conservative justices, including perennial “swing vote” Justice Kennedy, seemed dubious of the plaintiffs’ theory that diffuse, store-level decision making was sufficient to establish the cohesive policy or practice necessary for class treatment. Moreover, despite the issue formally before the Court being whether the elements for class certification have been satisfied (not whether Wal-Mart committed the sexual discrimination that is alleged), the Court’s conservative bloc showed an apparent sympathy for Wal-Mart’s argument that the company has, in the words of Wal-Mart’s lead attorney “a very strong policy against discrimination.”
Though in more muted terms, the Court’s liberal Justices — Justices Breyer, Ginsburg, Kagan and Sotomayor — appeared to accept the idea that permitting store managers to use subjective criteria in evaluating promotion decisions can create the equivalent of a coherent, company-wide policy and satisfy the commonality requirement. Supported by testimony from sociology experts, the plaintiffs theorize that, despite roughly three-quarters of Wal-Mart’s non-managerial employees being women, fewer than half of managers are women because the subjective decision-making criteria allow discriminatory motivations to tacitly infect the promotion process.
In an unusually spirited response, Justice Kagan squarely addressed Wal-Mart’s defense to certification based on a lack of commonality, and took issue with the contention of Theordore Boutros, Wal-Mart’s lead counsel, that “[Plaintiffs’] 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 Kagan interjected, “I don’t think that’s quite fair, Mr. Boutros,” and explained, “I think their argument was that the common policy was one of . . . using factors that allowed gender discrimination to come into all employment decisions. And in Watson [v. Fort Worth Bank & Trust, 487 U.S. 977 (1988)], 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.”
The full transcript of Tuesday’s oral argument is available here.