Dukes v. Wal-Mart: What is a “Policy”?

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At its essence, the Dukes v. Wal-Mart appeal that was argued before the Supreme Court last week is not about the ultimate merits — whether Wal-Mart discriminated against female employees by disproportionately promoting males — but whether that ultimate merits determination can be made in a single, class-wide adjudication. As in many class actions where injunctive or declaratory relief is sought under FRCP 23(b)(2), the key certification issue in Dukes is whether common issues of law or fact exist. For the Dukes plaintiffs, this means that they must identify a specific Wal-Mart policy that is applicable class-wide, so that they can point to that policy as being the impetus behind the gender discrimination. This challenge is heightened by the rarity of overtly discriminatory policies within today’s corporate culture. The days of “smoking gun” memos describing nefarious policies and practices are long gone, except perhaps as a plot device in a book or film.

Accordingly, many of the questions posed by Justices during the Dukes oral argument seemed designed to get to the heart of what specific policy, if any, was at issue in this case. For example, Justice Kennedy pressed Wal-Mart’s lawyer, Gibson Dunn’s Theodore Boutrous, as to whether deliberate indifference to discrimination could qualify as a policy, while Chief Justice Roberts wanted to know whether, if the head office received regular reports from its stores revealing widespread patterns of discrimination, “[a]t some point, can’t they conclude that it is their policy of decentralizing decisionmaking that is causing or permitting that discrimination to take place?”.

These questions exemplify an important issue, not just in Dukes but in any class action alleging a uniform policy or practice as the basis for establishing the commonality necessary for certification. To the extent that Dukes endorses the principle of law embodied in Justice Kennedy’s inquiry — that deliberate indifference may be regarded as a de facto policy — it could provide a helpful analytical tool for plaintiffs.

The official transcript of the Dukes oral argument is available here.