(Slip Opinion) OCTOBER TERM, 2010 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

WAL-MART STORES, INC. v. DUKES ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE NINTH CIRCUIT 

No. 10–277. Argued March 29, 2011—Decided June 20, 2011 

Respondents, current or former employees of petitioner Wal-Mart, 

sought judgment against the company for injunctive and declaratory

relief, punitive damages, and backpay, on behalf of themselves and a

nationwide class of some 1.5 million female employees, because of

Wal-Mart’s alleged discrimination against women in violation of Title

VII of the Civil Rights Act of 1964. They claim that local managers

exercise their discretion over pay and promotions disproportionately

in favor of men, which has an unlawful disparate impact on female

employees; and that Wal-Mart’s refusal to cabin its managers’ authority amounts to disparate treatment. The District Court certified 

the class, finding that respondents satisfied Federal Rule of Civil

Procedure 23(a), and Rule 23(b)(2)’s requirement of showing that “the 

party opposing the class has acted or refused to act on grounds that 

apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a 

whole.” The Ninth Circuit substantially affirmed, concluding, inter 

alia, that respondents met Rule 23(a)(2)’s commonality requirement 

and that their backpay claims could be certified as part of a (b)(2) 

class because those claims did not predominate over the declaratory

and injunctive relief requests. It also ruled that the class action 

could be manageably tried without depriving Wal-Mart of its right to 

present its statutory defenses if the District Court selected a random

set of claims for valuation and then extrapolated the validity and

value of the untested claims from the sample set. 

Held: 

1. The certification of the plaintiff class was not consistent with

Rule 23(a). Pp. 8–20.

(a) Rule 23(a)(2) requires a party seeking class certification to 
2 WAL-MART STORES, INC. v. DUKES 

Syllabus 

prove that the class has common “questions of law or fact.” Their 

claims must depend upon a common contention of such a nature that

it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the

validity of each one of the claims in one stroke. Here, proof of commonality necessarily overlaps with respondents’ merits contention 

that Wal-Mart engages in a pattern or practice of discrimination. 

The crux of a Title VII inquiry is “the reason for a particular employment decision,” Cooper v. Federal Reserve Bank of Richmond, 467 

U. S. 867, 876, and respondents wish to sue for millions of employment decisions at once. Without some glue holding together the alleged reasons for those decisions, it will be impossible to say that examination of all the class members’ claims will produce a common 

answer to the crucial discrimination question. Pp. 8–12.

(b) General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, 

describes the proper approach to commonality. On the facts of this 

case, the conceptual gap between an individual’s discrimination claim

and “the existence of a class of persons who have suffered the same

injury,” id., at 157–158, must be bridged by “[s]ignificant proof that 

an employer operated under a general policy of discrimination,” id., 

at 159, n. 15. Such proof is absent here. Wal-Mart’s announced policy forbids sex discrimination, and the company has penalties for denials of equal opportunity. Respondents’ only evidence of a general

discrimination policy was a sociologist’s analysis asserting that WalMart’s corporate culture made it vulnerable to gender bias. But because he could not estimate what percent of Wal-Mart employment

decisions might be determined by stereotypical thinking, his testimony was worlds away from “significant proof” that Wal-Mart “operated under a general policy of discrimination.” Pp. 12–14.

(c) The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of giving local supervisors

discretion over employment matters. While such a policy could be 

the basis of a Title VII disparate-impact claim, recognizing that a

claim “can” exist does not mean that every employee in a company 

with that policy has a common claim. In a company of Wal-Mart’s 

size and geographical scope, it is unlikely that all managers would 

exercise their discretion in a common way without some common direction. Respondents’ attempt to show such direction by means of 

statistical and anecdotal evidence falls well short. Pp. 14–20.

2. Respondents’ backpay claims were improperly certified under 

Rule 23(b)(2). Pp. 20–27. 

(a) Claims for monetary relief may not be certified under Rule

23(b)(2), at least where the monetary relief is not incidental to the

requested injunctive or declaratory relief. It is unnecessary to decide 
Cite as: 564 U. S. ____ (2011) 3 

Syllabus 

whether monetary claims can ever be certified under the Rule because, at a minimum, claims for individualized relief, like backpay, 

are excluded. Rule 23(b)(2) applies only when a single, indivisible

remedy would provide relief to each class member. The Rule’s history and structure indicate that individualized monetary claims belong instead in Rule 23(b)(3), with its procedural protections of predominance, superiority, mandatory notice, and the right to opt out.

Pp. 20–23. 

 (b) Respondents nonetheless argue that their backpay claims 

were appropriately certified under Rule 23(b)(2) because those claims

do not “predominate” over their injunctive and declaratory relief requests. That interpretation has no basis in the Rule’s text and does 

obvious violence to the Rule’s structural features. The mere “predominance” of a proper (b)(2) injunctive claim does nothing to justify

eliminating Rule 23(b)(3)’s procedural protections, and creates incentives for class representatives to place at risk potentially valid monetary relief claims. Moreover, a district court would have to reevaluate the roster of class members continuously to excise those who 

leave their employment and become ineligible for classwide injunctive or declaratory relief. By contrast, in a properly certified (b)(3)

class action for backpay, it would be irrelevant whether the plaintiffs

are still employed at Wal-Mart. It follows that backpay claims

should not be certified under Rule 23(b)(2). Pp. 23–26.

(c) It is unnecessary to decide whether there are any forms of “incidental” monetary relief that are consistent with the above interpretation of Rule 23(b)(2) and the Due Process Clause because respondents’ backpay claims are not incidental to their requested 

injunction. Wal-Mart is entitled to individualized determinations of 

each employee’s eligibility for backpay. Once a plaintiff establishes a

pattern or practice of discrimination, a district court must usually

conduct “additional proceedings . . . to determine the scope of individual relief.” Teamsters v. United States, 431 U. S. 324, 361. The 

company can then raise individual affirmative defenses and demonstrate that its action was lawful. Id., at 362. The Ninth Circuit erred 

in trying to replace such proceedings with Trial by Formula. Because 

Rule 23 cannot be interpreted to “abridge, enlarge or modify any substantive right,” 28 U. S. C. §2072(b), a class cannot be certified on the

premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims. Pp. 26–27. 

603 F. 3d 571, reversed. 

SCALIA, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined, and in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined as to Parts I and III. 
4 WAL-MART STORES, INC. v. DUKES 

Syllabus 

GINSBURG, J., filed an opinion concurring in part and dissenting in part,

in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined. 
_________________ 

_________________ 

Cite as: 564 U. S. ____ (2011) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 10–277 

WAL-MART STORES, INC., PETITIONER v.

BETTY DUKES ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE NINTH CIRCUIT

[June 20, 2011] 

JUSTICE SCALIA delivered the opinion of the Court. 

We are presented with one of the most expansive class 

actions ever. The District Court and the Court of Appeals

approved the certification of a class comprising about one 

and a half million plaintiffs, current and former female 

employees of petitioner Wal-Mart who allege that the

discretion exercised by their local supervisors over pay

and promotion matters violates Title VII by discriminating against women. In addition to injunctive and declaratory relief, the plaintiffs seek an award of backpay. We 

consider whether the certification of the plaintiff class 

was consistent with Federal Rules of Civil Procedure 23(a) 

and (b)(2). 

I 

A 

Petitioner Wal-Mart is the Nation’s largest private

employer. It operates four types of retail stores throughout the country: Discount Stores, Supercenters, Neighborhood Markets, and Sam’s Clubs. Those stores are divided 

into seven nationwide divisions, which in turn comprise 41

regions of 80 to 85 stores apiece. Each store has between 
2 WAL-MART STORES, INC. v. DUKES 

Opinion of the Court 

40 and 53 separate departments and 80 to 500 staff positions. In all, Wal-Mart operates approximately 3,400

stores and employs more than one million people. 

Pay and promotion decisions at Wal-Mart are generally 

committed to local managers’ broad discretion, which is

exercised “in a largely subjective manner.” 222 F. R. D. 

137, 145 (ND Cal. 2004). Local store managers may increase the wages of hourly employees (within limits) with 

only limited corporate oversight. As for salaried employees, such as store managers and their deputies, higher 

corporate authorities have discretion to set their pay within preestablished ranges.

Promotions work in a similar fashion. Wal-Mart permits store managers to apply their own subjective criteria

when selecting candidates as “support managers,” which is

the first step on the path to management. Admission to 

Wal-Mart’s management training program, however, does 

require that a candidate meet certain objective criteria,

including an above-average performance rating, at least 

one year’s tenure in the applicant’s current position, and a 

willingness to relocate. But except for those requirements, 

regional and district managers have discretion to use their 

own judgment when selecting candidates for management 

training. Promotion to higher office—e.g., assistant manager, co-manager, or store manager—is similarly at the 

discretion of the employee’s superiors after prescribed

objective factors are satisfied. 

B 

The named plaintiffs in this lawsuit, representing the

1.5 million members of the certified class, are three current or former Wal-Mart employees who allege that the

company discriminated against them on the basis of their 

sex by denying them equal pay or promotions, in violation 

of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as 
Cite as: 564 U. S. ____ (2011) 3 

Opinion of the Court 

amended, 42 U. S. C. §2000e–1 et seq.1 

Betty Dukes began working at a Pittsburgh, California, 

Wal-Mart in 1994. She started as a cashier, but later 

sought and received a promotion to customer service manager. After a series of disciplinary violations, however,

Dukes was demoted back to cashier and then to greeter.

Dukes concedes she violated company policy, but contends

that the disciplinary actions were in fact retaliation for

invoking internal complaint procedures and that male 

employees have not been disciplined for similar infractions. Dukes also claims two male greeters in the Pittsburgh store are paid more than she is. 

Christine Kwapnoski has worked at Sam’s Club stores 

in Missouri and California for most of her adult life. She 

has held a number of positions, including a supervisory 

position. She claims that a male manager yelled at her 

frequently and screamed at female employees, but not at 

men. The manager in question “told her to ‘doll up,’ to

wear some makeup, and to dress a little better.” App. 

1003a. 

The final named plaintiff, Edith Arana, worked at a

Wal-Mart store in Duarte, California, from 1995 to 2001. 

In 2000, she approached the store manager on more than 

one occasion about management training, but was brushed 

off. Arana concluded she was being denied opportunity for 

advancement because of her sex. She initiated internal 

complaint procedures, whereupon she was told to apply 

directly to the district manager if she thought her store 

manager was being unfair. Arana, however, decided 

against that and never applied for management training 

again. In 2001, she was fired for failure to comply with

Wal-Mart’s timekeeping policy.

These plaintiffs, respondents here, do not allege that 

—————— 

1The complaint included seven named plaintiffs, but only three remain part of the certified class as narrowed by the Court of Appeals. 
4 WAL-MART STORES, INC. v. DUKES 

Opinion of the Court 

Wal-Mart has any express corporate policy against the 

advancement of women. Rather, they claim that their 

local managers’ discretion over pay and promotions is

exercised disproportionately in favor of men, leading to an

unlawful disparate impact on female employees, see 42

U. S. C. §2000e–2(k). And, respondents say, because WalMart is aware of this effect, its refusal to cabin its managers’ authority amounts to disparate treatment, see 

§2000e–2(a). Their complaint seeks injunctive and declaratory relief, punitive damages, and backpay. It does 

not ask for compensatory damages.

Importantly for our purposes, respondents claim that 

the discrimination to which they have been subjected is 

common to all Wal-Mart’s female employees. The basic 

theory of their case is that a strong and uniform “corporate 

culture” permits bias against women to infect, perhaps

subconsciously, the discretionary decisionmaking of each 

one of Wal-Mart’s thousands of managers—thereby making every woman at the company the victim of one common discriminatory practice. Respondents therefore wish 

to litigate the Title VII claims of all female employees at 

Wal-Mart’s stores in a nationwide class action. 

C 

Class certification is governed by Federal Rule of Civil

Procedure 23. Under Rule 23(a), the party seeking certification must demonstrate, first, that: 

“(1) the class is so numerous that joinder of all members is impracticable,

“(2) there are questions of law or fact common to the

class, 

“(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, 

and 

“(4) the representative parties will fairly and adequately protect the interests of the class” (paragraph 
Cite as: 564 U. S. ____ (2011) 5 

Opinion of the Court 

breaks added). 

Second, the proposed class must satisfy at least one of the

three requirements listed in Rule 23(b). Respondents rely

on Rule 23(b)(2), which applies when “the party opposing

the class has acted or refused to act on grounds that apply 

generally to the class, so that final injunctive relief or 

corresponding declaratory relief is appropriate respecting 

the class as a whole.”2 

Invoking these provisions, respondents moved the District Court to certify a plaintiff class consisting of “‘[a]ll 

women employed at any Wal-Mart domestic retail store 

at any time since December 26, 1998, who have been or 

may be subjected to Wal-Mart’s challenged pay and management track promotions policies and practices.’” 222 

F. R. D., at 141–142 (quoting Plaintiff’s Motion for Class 

Certification in case No. 3:01–cv–02252–CRB (ND Cal.),

Doc. 99, p. 37). As evidence that there were indeed “questions of law or fact common to” all the women of Wal-Mart, 

as Rule 23(a)(2) requires, respondents relied chiefly on

three forms of proof: statistical evidence about pay and 

promotion disparities between men and women at the

company, anecdotal reports of discrimination from about 

120 of Wal-Mart’s female employees, and the testimony of 

a sociologist, Dr. William Bielby, who conducted a “social 

—————— 

2Rule 23(b)(1) allows a class to be maintained where “prosecuting

separate actions by or against individual class members would create a 

risk of” either “(A) inconsistent or varying adjudications,” or “(B)

adjudications . . . that, as a practical matter, would be dispositive of the

interests of the other members not parties to the individual adjudications or would substantially impair or impeded their ability to protect 

their interests.” Rule 23(b)(3) states that a class may be maintained

where “questions of law or fact common to class members predominate

over any questions affecting only individual members,” and a class

action would be “superior to other available methods for fairly and 

efficiently adjudicating the controversy.” The applicability of these 

provisions to the plaintiff class is not before us. 
6 WAL-MART STORES, INC. v. DUKES 

 

Opinion of the Court 

framework analysis” of Wal-Mart’s “culture” and personnel practices, and concluded that the company was “vulnerable” to gender discrimination. 603 F. 3d 571, 601 

(CA9 2010) (en banc). 

 Wal-Mart unsuccessfully moved to strike much of this 

evidence. It also offered its own countervailing statistical 

and other proof in an effort to defeat Rule 23(a)’s requirements of commonality, typicality, and adequate representation. Wal-Mart further contended that respondents’ 

monetary claims for backpay could not be certified under 

Rule 23(b)(2), first because that Rule refers only to injunctive and declaratory relief, and second because the backpay claims could not be manageably tried as a class without depriving Wal-Mart of its right to present certain 

statutory defenses. With one limitation not relevant here, 

the District Court granted respondents’ motion and certified their proposed class.3

D 

 A divided en banc Court of Appeals substantially affirmed the District Court’s certification order. 603 F. 3d 

571. The majority concluded that respondents’ evidence of 

commonality was sufficient to “raise the common question 

whether Wal-Mart’s female employees nationwide were 

subjected to a single set of corporate policies (not merely a 

number of independent discriminatory acts) that may 

have worked to unlawfully discriminate against them in 

violation of Title VII.” Id., at 612 (emphasis deleted). It 

also agreed with the District Court that the named plaintiffs’ claims were sufficiently typical of the class as a whole 

—————— 

3The District Court excluded backpay claims based on promotion 

opportunities that had not been publicly posted, for the reason that no 

applicant data could exist for such positions. 222 F. R. D. 137, 182 (ND 

Cal. 2004). It also decided to afford class members notice of the action and the right to opt-out of the class with respect to respondents’ 

punitive-damages claim. Id., at 173. 
Cite as: 564 U. S. ____ (2011) 7 

Opinion of the Court 

to satisfy Rule 23(a)(3), and that they could serve as adequate class representatives, see Rule 23(a)(4). Id., at 614– 

615. With respect to the Rule 23(b)(2) question, the Ninth

Circuit held that respondents’ backpay claims could be

certified as part of a (b)(2) class because they did not 

“predominat[e]” over the requests for declaratory and

injunctive relief, meaning they were not “superior in 

strength, influence, or authority” to the nonmonetary 

claims. Id., at 616 (internal quotation marks omitted).4 

Finally, the Court of Appeals determined that the action

could be manageably tried as a class action because the

District Court could adopt the approach the Ninth Circuit 

approved in Hilao v. Estate of Marcos, 103 F. 3d 767, 782– 

787 (1996). There compensatory damages for some 9,541 

class members were calculated by selecting 137 claims at 

random, referring those claims to a special master for

valuation, and then extrapolating the validity and value of

the untested claims from the sample set. See 603 F. 3d, at 

625–626. The Court of Appeals “s[aw] no reason why a 

similar procedure to that used in Hilao could not be employed in this case.” Id., at 627. It would allow Wal-Mart 

“to present individual defenses in the randomly selected

‘sample cases,’ thus revealing the approximate percentage 

of class members whose unequal pay or nonpromotion was

due to something other than gender discrimination.” 

Ibid., n. 56 (emphasis deleted). 

—————— 

4To enable that result, the Court of Appeals trimmed the (b)(2) class 

in two ways: First, it remanded that part of the certification order 

which included respondents’ punitive-damages claim in the (b)(2) class,

so that the District Court might consider whether that might cause the 

monetary relief to predominate. 603 F. 3d, at 621. Second, it accepted

in part Wal-Mart’s argument that since class members whom it no 

longer employed had no standing to seek injunctive or declaratory

relief, as to them monetary claims must predominate. It excluded from 

the certified class “those putative class members who were no longer

Wal-Mart employees at the time Plaintiffs’ complaint was filed,” id., at 

623 (emphasis added). 
8 WAL-MART STORES, INC. v. DUKES 

Opinion of the Court 

We granted certiorari. 562 U. S. ___ (2010). 

II 

The class action is “an exception to the usual rule that

litigation is conducted by and on behalf of the individual 

named parties only.” Califano v. Yamasaki, 442 U. S. 682, 

700–701 (1979). In order to justify a departure from that 

rule, “a class representative must be part of the class and

‘possess the same interest and suffer the same injury’ as 

the class members.” East Tex. Motor Freight System, 

Inc. v. Rodriguez, 431 U. S. 395, 403 (1977) (quoting 

Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 

208, 216 (1974)). Rule 23(a) ensures that the named 

plaintiffs are appropriate representatives of the class 

whose claims they wish to litigate. The Rule’s four 

requirements—numerosity, commonality, typicality, and

adequate representation—“effectively ‘limit the class 

claims to those fairly encompassed by the named plaintiff’s claims.’” General Telephone Co. of Southwest v. 

Falcon, 457 U. S. 147, 156 (1982) (quoting General Telephone Co. of Northwest v. EEOC, 446 U. S. 318, 330 

(1980)). 

A 

The crux of this case is commonality—the rule requiring

a plaintiff to show that “there are questions of law or fact 

common to the class.” Rule 23(a)(2).5 That language is 

—————— 

5We have previously stated in this context that “[t]he commonality

and typicality requirements of Rule 23(a) tend to merge. Both serve as 

guideposts for determining whether under the particular circumstances 

maintenance of a class action is economical and whether the named 

plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in 

their absence. Those requirements therefore also tend to merge with 

the adequacy-of-representation requirement, although the latter 

requirement also raises concerns about the competency of class counsel 

and conflicts of interest.” General Telephone Co. of Southwest v. Fal-
Cite as: 564 U. S. ____ (2011) 9 

Opinion of the Court 

easy to misread, since “[a]ny competently crafted class

complaint literally raises common ‘questions.’ ” Nagareda,

Class Certification in the Age of Aggregate Proof, 84 

N. Y. U. L. Rev. 97, 131–132 (2009). For example: Do all 

of us plaintiffs indeed work for Wal-Mart? Do our managers have discretion over pay? Is that an unlawful employment practice? What remedies should we get? Reciting these questions is not sufficient to obtain class

certification. Commonality requires the plaintiff to demonstrate that the class members “have suffered the same 

injury,” Falcon, supra, at 157. This does not mean merely 

that they have all suffered a violation of the same provision of law. Title VII, for example, can be violated in 

many ways—by intentional discrimination, or by hiring

and promotion criteria that result in disparate impact, 

and by the use of these practices on the part of many

different superiors in a single company. Quite obviously,

the mere claim by employees of the same company that 

they have suffered a Title VII injury, or even a disparateimpact Title VII injury, gives no cause to believe that all

their claims can productively be litigated at once. Their 

claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of 

the same supervisor. That common contention, moreover, 

must be of such a nature that it is capable of classwide

resolution—which means that determination of its truth 

or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. 

“What matters to class certification . . . is not the raising of common ‘questions’—even in droves—but, 

rather the capacity of a classwide proceeding to gen-

—————— 

con, 457 U. S. 147, 157–158, n. 13 (1982). In light of our disposition of 

the commonality question, however, it is unnecessary to resolve 

whether respondents have satisfied the typicality and adequaterepresentation requirements of Rule 23(a). 
10 WAL-MART STORES, INC. v. DUKES 

Opinion of the Court 

erate common answers apt to drive the resolution of 

the litigation. Dissimilarities within the proposed 

class are what have the potential to impede the generation of common answers.” Nagareda, supra, at 132. 

Rule 23 does not set forth a mere pleading standard. A 

party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be

prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. We 

recognized in Falcon that “sometimes it may be necessary

for the court to probe behind the pleadings before coming

to rest on the certification question,” 457 U. S., at 160, and 

that certification is proper only if “the trial court is satisfied, after a rigorous analysis, that the prerequisites of 

Rule 23(a) have been satisfied,” id., at 161; see id., at 160 

(“[A]ctual, not presumed, conformance with Rule 23(a) 

remains . . . indispensable”). Frequently that “rigorous 

analysis” will entail some overlap with the merits of 

the plaintiff’s underlying claim. That cannot be helped. 

“‘[T]he class determination generally involves considerations that are enmeshed in the factual and legal issues

comprising the plaintiff’s cause of action.’” Falcon, supra, 

at 160 (quoting Coopers & Lybrand v. Livesay, 437 U. S. 

463, 469 (1978); some internal quotation marks omitted).6 

—————— 

6A statement in one of our prior cases, Eisen v. Carlisle & Jacquelin, 

417 U. S. 156, 177 (1974), is sometimes mistakenly cited to the contrary: “We find nothing in either the language or history of Rule 23 that 

gives a court any authority to conduct a preliminary inquiry into the 

merits of a suit in order to determine whether it may be maintained as

a class action.” But in that case, the judge had conducted a preliminary

inquiry into the merits of a suit, not in order to determine the propriety 

of certification under Rules 23(a) and (b) (he had already done that, see 

id., at 165), but in order to shift the cost of notice required by Rule 

23(c)(2) from the plaintiff to the defendants. To the extent the quoted

statement goes beyond the permissibility of a merits inquiry for any

other pretrial purpose, it is the purest dictum and is contradicted by 

our other cases. 
Cite as: 564 U. S. ____ (2011) 11 

Opinion of the Court 

Nor is there anything unusual about that consequence:

The necessity of touching aspects of the merits in order to 

resolve preliminary matters, e.g., jurisdiction and venue,

is a familiar feature of litigation. See Szabo v. Bridgeport 

Machines, Inc., 249 F. 3d 672, 676–677 (CA7 2001) 

(Easterbrook, J.).

In this case, proof of commonality necessarily overlaps

with respondents’ merits contention that Wal-Mart engages in a pattern or practice of discrimination.7 That is so 

because, in resolving an individual’s Title VII claim, the 

crux of the inquiry is “the reason for a particular employment decision,” Cooper v. Federal Reserve Bank of Richmond, 467 U. S. 867, 876 (1984). Here respondents wish 

—————— 

Perhaps the most common example of considering a merits question 

at the Rule 23 stage arises in class-action suits for securities fraud.

Rule 23(b)(3)’s requirement that “questions of law or fact common to

class members predominate over any questions affecting only individual members” would often be an insuperable barrier to class certification, since each of the individual investors would have to prove reliance

on the alleged misrepresentation. But the problem dissipates if the 

plaintiffs can establish the applicability of the so-called “fraud on the 

market” presumption, which says that all traders who purchase stock

in an efficient market are presumed to have relied on the accuracy of a 

company’s public statements. To invoke this presumption, the plaintiffs seeking 23(b)(3) certification must prove that their shares were 

traded on an efficient market, Erica P. John Fund, Inc. v. Halliburton 

Co., 563 U. S. ___, ___ (2011) (slip op., at 5), an issue they will surely

have to prove again at trial in order to make out their case on the 

merits. 7 In a pattern-or-practice case, the plaintiff tries to “establish by a 

preponderance of the evidence that . . . discrimination was the company’s standard operating procedure[,] the regular rather than the 

unusual practice.” Teamsters v. United States, 431 U. S. 324, 358 

(1977); see also Franks v. Bowman Transp. Co., 424 U. S. 747, 772 

(1976). If he succeeds, that showing will support a rebuttable inference

that all class members were victims of the discriminatory practice, and

will justify “an award of prospective relief,” such as “an injunctive order 

against the continuation of the discriminatory practice.” Teamsters, 

supra, at 361. 
12 WAL-MART STORES, INC. v. DUKES 

Opinion of the Court 

to sue about literally millions of employment decisions at 

once. Without some glue holding the alleged reasons for 

all those decisions together, it will be impossible to say

that examination of all the class members’ claims for relief 

will produce a common answer to the crucial question why 

was I disfavored. 

B 

This Court’s opinion in Falcon describes how the commonality issue must be approached. There an employee

who claimed that he was deliberately denied a promotion

on account of race obtained certification of a class comprising all employees wrongfully denied promotions and all

applicants wrongfully denied jobs. 457 U. S., at 152. We 

rejected that composite class for lack of commonality and

typicality, explaining: 

“Conceptually, there is a wide gap between (a) an individual’s claim that he has been denied a promotion 

[or higher pay] on discriminatory grounds, and his 

otherwise unsupported allegation that the company 

has a policy of discrimination, and (b) the existence of

a class of persons who have suffered the same injury

as that individual, such that the individual’s claim 

and the class claim will share common questions of 

law or fact and that the individual’s claim will be typical of the class claims.” Id., at 157–158. 

Falcon suggested two ways in which that conceptual gap 

might be bridged. First, if the employer “used a biased

testing procedure to evaluate both applicants for employment and incumbent employees, a class action on behalf of 

every applicant or employee who might have been prejudiced by the test clearly would satisfy the commonality 

and typicality requirements of Rule 23(a).” Id., at 159, 

n. 15. Second, “[s]ignificant proof that an employer operated under a general policy of discrimination conceivably 
Cite as: 564 U. S. ____ (2011) 13 

Opinion of the Court 

could justify a class of both applicants and employees

if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as 

through entirely subjective decisionmaking processes.” 

Ibid. We think that statement precisely describes respondents’ burden in this case. The first manner of bridging

the gap obviously has no application here; Wal-Mart has 

no testing procedure or other companywide evaluation 

method that can be charged with bias. The whole point of 

permitting discretionary decisionmaking is to avoid evaluating employees under a common standard. 

The second manner of bridging the gap requires “significant proof” that Wal-Mart “operated under a general 

policy of discrimination.” That is entirely absent here. 

Wal-Mart’s announced policy forbids sex discrimination,

see App. 1567a–1596a, and as the District Court recognized the company imposes penalties for denials of equal

employment opportunity, 222 F. R. D., at 154. The only

evidence of a “general policy of discrimination” respondents produced was the testimony of Dr. William Bielby, 

their sociological expert. Relying on “social framework” 

analysis, Bielby testified that Wal-Mart has a “strong

corporate culture,” that makes it “‘vulnerable’” to “gender

bias.” Id., at 152. He could not, however, “determine with 

any specificity how regularly stereotypes play a meaningful role in employment decisions at Wal-Mart. At his 

deposition . . . Dr. Bielby conceded that he could not calculate whether 0.5 percent or 95 percent of the employment

decisions at Wal-Mart might be determined by stereotyped

thinking.” 222 F. R. D. 189, 192 (ND Cal. 2004). The 

parties dispute whether Bielby’s testimony even met the

standards for the admission of expert testimony under

Federal Rule of Civil Procedure 702 and our Daubert case, 

see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 
14 WAL-MART STORES, INC. v. DUKES 

Opinion of the Court 

U. S. 579 (1993).8 The District Court concluded that 

Daubert did not apply to expert testimony at the certification stage of class-action proceedings. 222 F. R. D., at 191. 

We doubt that is so, but even if properly considered, 

Bielby’s testimony does nothing to advance respondents’ 

case. “[W]hether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by

stereotyped thinking” is the essential question on which 

respondents’ theory of commonality depends. If Bielby

admittedly has no answer to that question, we can safely 

disregard what he has to say. It is worlds away from

“significant proof” that Wal-Mart “operated under a general policy of discrimination.” 

C 

The only corporate policy that the plaintiffs’ evidence 

convincingly establishes is Wal-Mart’s “policy” of allowing 

discretion by local supervisors over employment matters.

On its face, of course, that is just the opposite of a uniform

employment practice that would provide the commonality 

needed for a class action; it is a policy against having 

uniform employment practices. It is also a very common 

—————— 

8Bielby’s conclusions in this case have elicited criticism from the very 

scholars on whose conclusions he relies for his social-framework analysis. See Monahan, Walker, & Mitchell, Contextual Evidence of Gender 

Discrimination: The Ascendance of “Social Frameworks,” 94 Va. 

L. Rev. 1715, 1747 (2008) (“[Bielby’s] research into conditions and behavior at Wal-Mart did not meet the standards expected of social

scientific research into stereotyping and discrimination”); id., at 1745, 

1747 (“[A] social framework necessarily contains only general statements about reliable patterns of relations among variables . . . and goes

no further. . . . Dr. Bielby claimed to present a social framework, but he

testified about social facts specific to Wal-Mart”); id., at 1747–1748 

(“Dr. Bielby’s report provides no verifiable method for measuring and 

testing any of the variables that were crucial to his conclusions and

reflects nothing more than Dr. Bielby’s ‘expert judgment’ about how 

general stereotyping research applied to all managers across all of WalMart’s stores nationwide for the multi-year class period”). 
Cite as: 564 U. S. ____ (2011) 15 

Opinion of the Court 

and presumptively reasonable way of doing business—one 

that we have said “should itself raise no inference of discriminatory conduct,” Watson v. Fort Worth Bank & Trust, 

487 U. S. 977, 990 (1988).

To be sure, we have recognized that, “in appropriate

cases,” giving discretion to lower-level supervisors can be 

the basis of Title VII liability under a disparate-impact

theory—since “an employer’s undisciplined system of 

subjective decisionmaking [can have] precisely the same

effects as a system pervaded by impermissible intentional 

discrimination.” Id., at 990–991. But the recognition that

this type of Title VII claim “can” exist does not lead to 

the conclusion that every employee in a company using a 

system of discretion has such a claim in common. To the 

contrary, left to their own devices most managers in any 

corporation—and surely most managers in a corporation

that forbids sex discrimination—would select sex-neutral, 

performance-based criteria for hiring and promotion that 

produce no actionable disparity at all. Others may choose to

reward various attributes that produce disparate impact—

such as scores on general aptitude tests or educational

achievements, see Griggs v. Duke Power Co., 401 U. S. 

424, 431–432 (1971). And still other managers may be

guilty of intentional discrimination that produces a sexbased disparity. In such a company, demonstrating the 

invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s. A party

seeking to certify a nationwide class will be unable to

show that all the employees’ Title VII claims will in fact 

depend on the answers to common questions.

Respondents have not identified a common mode of exercising discretion that pervades the entire company—aside 

from their reliance on Dr. Bielby’s social frameworks analysis that we have rejected. In a company of Wal-Mart’s size

and geographical scope, it is quite unbelievable that all

managers would exercise their discretion in a common way 
16 WAL-MART STORES, INC. v. DUKES 

Opinion of the Court 

without some common direction. Respondents attempt to

make that showing by means of statistical and anecdotal 

evidence, but their evidence falls well short. 

The statistical evidence consists primarily of regression

analyses performed by Dr. Richard Drogin, a statistician,

and Dr. Marc Bendick, a labor economist. Drogin conducted his analysis region-by-region, comparing the number of women promoted into management positions with

the percentage of women in the available pool of hourly 

workers. After considering regional and national data,

Drogin concluded that “there are statistically significant 

disparities between men and women at Wal-Mart . . .

[and] these disparities . . . can be explained only by gender

discrimination.” 603 F. 3d, at 604 (internal quotation 

marks omitted). Bendick compared work-force data from

Wal-Mart and competitive retailers and concluded that

Wal-Mart “promotes a lower percentage of women than its

competitors.” Ibid. 

Even if they are taken at face value, these studies are

insufficient to establish that respondents’ theory can be

proved on a classwide basis. In Falcon, we held that one 

named plaintiff’s experience of discrimination was insufficient to infer that “discriminatory treatment is typical of

[the employer’s employment] practices.” 457 U. S., at 158. 

A similar failure of inference arises here. As Judge Ikuta

observed in her dissent, “[i]nformation about disparities at 

the regional and national level does not establish the 

existence of disparities at individual stores, let alone raise 

the inference that a company-wide policy of discrimination 

is implemented by discretionary decisions at the store and 

district level.” 603 F. 3d, at 637. A regional pay disparity,

for example, may be attributable to only a small set of

Wal-Mart stores, and cannot by itself establish the uniform, store-by-store disparity upon which the plaintiffs’ 

theory of commonality depends.

There is another, more fundamental, respect in which 
Cite as: 564 U. S. ____ (2011) 17 

Opinion of the Court 

respondents’ statistical proof fails. Even if it established 

(as it does not) a pay or promotion pattern that differs

from the nationwide figures or the regional figures in all of 

Wal-Mart’s 3,400 stores, that would still not demonstrate 

that commonality of issue exists. Some managers will 

claim that the availability of women, or qualified women, 

or interested women, in their stores’ area does not mirror 

the national or regional statistics. And almost all of them 

will claim to have been applying some sex-neutral,

performance-based criteria—whose nature and effects

will differ from store to store. In the landmark case of 

ours which held that giving discretion to lower-level supervisors can be the basis of Title VII liability under a 

disparate-impact theory, the plurality opinion conditioned 

that holding on the corollary that merely proving that the

discretionary system has produced a racial or sexual 

disparity is not enough. “[T]he plaintiff must begin by

identifying the specific employment practice that is challenged.” Watson, 487 U. S., at 994; accord, Wards Cove 

Packing Co. v. Atonio, 490 U. S. 642, 656 (1989) (approving that statement), superseded by statute on other 

grounds, 42 U. S. C. §2000e–2(k). That is all the more 

necessary when a class of plaintiffs is sought to be certified. Other than the bare existence of delegated discretion, respondents have identified no “specific employment

practice”—much less one that ties all their 1.5 million 

claims together. Merely showing that Wal-Mart’s policy of

discretion has produced an overall sex-based disparity

does not suffice. 

Respondents’ anecdotal evidence suffers from the same

defects, and in addition is too weak to raise any inference 

that all the individual, discretionary personnel decisions 

are discriminatory. In Teamsters v. United States, 431 

U. S. 324 (1977), in addition to substantial statistical 

evidence of company-wide discrimination, the Government

(as plaintiff) produced about 40 specific accounts of racial 
18 WAL-MART STORES, INC. v. DUKES 

Opinion of the Court 

discrimination from particular individuals. See id., at 

338. That number was significant because the company 

involved had only 6,472 employees, of whom 571 were 

minorities, id., at 337, and the class itself consisted of 

around 334 persons, United States v. T.I.M.E.-D. C., Inc., 

517 F. 2d 299, 308 (CA5 1975), overruled on other 

grounds, Teamsters, supra. The 40 anecdotes thus represented roughly one account for every eight members of 

the class. Moreover, the Court of Appeals noted that the

anecdotes came from individuals “spread throughout” the

company who “for the most part” worked at the company’s

operational centers that employed the largest numbers of 

the class members. 517 F. 2d, at 315, and n. 30. Here, by

contrast, respondents filed some 120 affidavits reporting

experiences of discrimination—about 1 for every 12,500 

class members—relating to only some 235 out of WalMart’s 3,400 stores. 603 F. 3d, at 634 (Ikuta, J., dissenting). More than half of these reports are concentrated in

only six States (Alabama, California, Florida, Missouri,

Texas, and Wisconsin); half of all States have only one or 

two anecdotes; and 14 States have no anecdotes about 

Wal-Mart’s operations at all. Id., at 634–635, and n. 10. 

Even if every single one of these accounts is true, that 

would not demonstrate that the entire company “operate[s] under a general policy of discrimination,” Falcon, 

supra, at 159, n. 15, which is what respondents must show 

to certify a companywide class.9 

The dissent misunderstands the nature of the foregoing 

—————— 

9The dissent says that we have adopted “a rule that a discrimination

claim, if accompanied by anecdotes, must supply them in numbers

proportionate to the size of the class.” Post, at 5, n. 4 (GINSBURG, J., 

concurring in part and dissenting in part). That is not quite accurate. 

A discrimination claimant is free to supply as few anecdotes as he

wishes. But when the claim is that a company operates under a general policy of discrimination, a few anecdotes selected from literally

millions of employment decisions prove nothing at all. 
Cite as: 564 U. S. ____ (2011) 19 

Opinion of the Court 

analysis. It criticizes our focus on the dissimilarities between the putative class members on the ground that

we have “blend[ed]” Rule 23(a)(2)’s commonality requirement with Rule 23(b)(3)’s inquiry into whether common

questions “predominate” over individual ones. See post, at 

8–10 (GINSBURG, J., concurring in part and dissenting in 

part). That is not so. We quite agree that for purposes of 

Rule 23(a)(2) “‘[e]ven a single [common] question’” will do, 

post, at 10, n. 9 (quoting Nagareda, The Preexistence

Principle and the Structure of the Class Action, 103 

Colum. L. Rev. 149, 176, n. 110 (2003)). We consider 

dissimilarities not in order to determine (as Rule 23(b)(3)

requires) whether common questions predominate, but in 

order to determine (as Rule 23(a)(2) requires) whether

there is “[e]ven a single [common] question.” And there is 

not here. Because respondents provide no convincing 

proof of a companywide discriminatory pay and promotion 

policy, we have concluded that they have not established 

the existence of any common question.10 

In sum, we agree with Chief Judge Kozinski that the

members of the class: 

“held a multitude of different jobs, at different levels

of Wal-Mart’s hierarchy, for variable lengths of time, 

in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to

a variety of regional policies that all differed. . . . 

Some thrived while others did poorly. They have little 

in common but their sex and this lawsuit.” 603 F. 3d, 

—————— 

10For this reason, there is no force to the dissent’s attempt to distinguish Falcon on the ground that in that case there were “ ‘no common 

questions of law or fact’ between the claims of the lead plaintiff and the

applicant class ” post, at 9, n. 7 (quoting Falcon, 457 U. S., at 162 

(Burger, C. J., concurring in part and dissenting in part)). Here also 

there is nothing to unite all of the plaintiffs’ claims, since (contrary to 

the dissent’s contention, post, at 9, n. 7), the same employment practices do not “touch and concern all members of the class.” 
20 WAL-MART STORES, INC. v. DUKES 

Opinion of the Court 

at 652 (dissenting opinion). 

III 

We also conclude that respondents’ claims for backpay

were improperly certified under Federal Rule of Civil

Procedure 23(b)(2). Our opinion in Ticor Title Ins. Co. v. 

Brown, 511 U. S. 117, 121 (1994) (per curiam) expressed

serious doubt about whether claims for monetary relief 

may be certified under that provision. We now hold that 

they may not, at least where (as here) the monetary relief

is not incidental to the injunctive or declaratory relief. 

A 

Rule 23(b)(2) allows class treatment when “the party 

opposing the class has acted or refused to act on grounds

that apply generally to the class, so that final injunctive 

relief or corresponding declaratory relief is appropriate

respecting the class as a whole.” One possible reading of 

this provision is that it applies only to requests for such

injunctive or declaratory relief and does not authorize the

class certification of monetary claims at all. We need not 

reach that broader question in this case, because we think 

that, at a minimum, claims for individualized relief (like

the backpay at issue here) do not satisfy the Rule. The 

key to the (b)(2) class is “the indivisible nature of the 

injunctive or declaratory remedy warranted—the notion 

that the conduct is such that it can be enjoined or declared

unlawful only as to all of the class members or as to none 

of them.” Nagareda, 84 N. Y. U. L. Rev., at 132. In other 

words, Rule 23(b)(2) applies only when a single injunction 

or declaratory judgment would provide relief to each 

member of the class. It does not authorize class certification when each individual class member would be entitled 

to a different injunction or declaratory judgment against 

the defendant. Similarly, it does not authorize class certification when each class member would be entitled to an 
Cite as: 564 U. S. ____ (2011) 21 

Opinion of the Court 

individualized award of monetary damages.

That interpretation accords with the history of the Rule. 

Because Rule 23 “stems from equity practice” that predated its codification, Amchem Products, Inc. v. Windsor, 

521 U. S. 591, 613 (1997), in determining its meaning we 

have previously looked to the historical models on which 

the Rule was based, Ortiz v. Fibreboard Corp., 527 U. S. 

815, 841–845 (1999). As we observed in Amchem, “[c]ivil

rights cases against parties charged with unlawful, classbased discrimination are prime examples” of what (b)(2) is 

meant to capture. 521 U. S., at 614. In particular, the 

Rule reflects a series of decisions involving challenges to 

racial segregation—conduct that was remedied by a single 

classwide order. In none of the cases cited by the Advisory

Committee as examples of (b)(2)’s antecedents did the 

plaintiffs combine any claim for individualized relief with 

their classwide injunction. See Advisory Committee’s

Note, 39 F. R. D. 69, 102 (1966) (citing cases); e.g., Potts v. 

Flax, 313 F. 2d 284, 289, n. 5 (CA5 1963); Brunson v. 

Board of Trustees of Univ. of School Dist. No. 1, Clarendon 

Cty., 311 F. 2d 107, 109 (CA4 1962) (per curiam); Frasier 

v. Board of Trustees of N.C., 134 F. Supp. 589, 593 (NC 

1955) (three-judge court), aff’d, 350 U. S. 979 (1956). 

Permitting the combination of individualized and classwide relief in a (b)(2) class is also inconsistent with the 

structure of Rule 23(b). Classes certified under (b)(1) and

(b)(2) share the most traditional justifications for class 

treatment—that individual adjudications would be impossible or unworkable, as in a (b)(1) class,11 or that the relief 

—————— 

11Rule 23(b)(1) applies where separate actions by or against individual class members would create a risk of “establish[ing] incompatible

standards of conduct for the party opposing the class,” Rule 23(b)(1)(A),

such as “where the party is obliged by law to treat the members of the 

class alike,” Amchem Products, Inc. v. Windsor, 521 U. S. 591, 614 

(1997), or where individual adjudications “as a practical matter, would

be dispositive of the interests of the other members not parties to the 
22 WAL-MART STORES, INC. v. DUKES 

Opinion of the Court 

sought must perforce affect the entire class at once, as in a

(b)(2) class. For that reason these are also mandatory 

classes: The Rule provides no opportunity for (b)(1) or 

(b)(2) class members to opt out, and does not even oblige

the District Court to afford them notice of the action. Rule 

23(b)(3), by contrast, is an “adventuresome innovation” of 

the 1966 amendments, Amchem, 521 U. S., at 614 (internal quotation marks omitted), framed for situations “in 

which ‘class-action treatment is not as clearly called for’,” 

id., at 615 (quoting Advisory Committee’s Notes, 28

U. S. C. App., p. 697 (1994 ed.)). It allows class certification in a much wider set of circumstances but with greater

procedural protections. Its only prerequisites are that “the 

questions of law or fact common to class members predominate over any questions affecting only individual

members, and that a class action is superior to other

available methods for fairly and efficiently adjudicating 

the controversy.” Rule 23(b)(3). And unlike (b)(1) and

(b)(2) classes, the (b)(3) class is not mandatory; class 

members are entitled to receive “the best notice that is 

practicable under the circumstances” and to withdraw

from the class at their option. See Rule 23(c)(2)(B).

Given that structure, we think it clear that individualized monetary claims belong in Rule 23(b)(3). The 

procedural protections attending the (b)(3) class— 

predominance, superiority, mandatory notice, and the

right to opt out—are missing from (b)(2) not because the 

Rule considers them unnecessary, but because it considers

them unnecessary to a (b)(2) class. When a class seeks an 

indivisible injunction benefitting all its members at once, 

there is no reason to undertake a case-specific inquiry into 

—————— 

individual adjudications or would substantially impair or impede their

ability to protect their interests,” Rule 23(b)(1)(B), such as in “ ‘limited

fund’ cases, . . . in which numerous persons make claims against a fund 

insufficient to satisfy all claims,” Amchem, supra, at 614. 
Cite as: 564 U. S. ____ (2011) 23 

Opinion of the Court 

whether class issues predominate or whether class action 

is a superior method of adjudicating the dispute. Predominance and superiority are self-evident. But with 

respect to each class member’s individualized claim for

money, that is not so—which is precisely why (b)(3) requires the judge to make findings about predominance and 

superiority before allowing the class. Similarly, (b)(2) does

not require that class members be given notice and optout rights, presumably because it is thought (rightly or

wrongly) that notice has no purpose when the class is 

mandatory, and that depriving people of their right to sue 

in this manner complies with the Due Process Clause. In 

the context of a class action predominantly for money 

damages we have held that absence of notice and opt-out

violates due process. See Phillips Petroleum Co. v. Shutts, 

472 U. S. 797, 812 (1985). While we have never held that 

to be so where the monetary claims do not predominate,

the serious possibility that it may be so provides an additional reason not to read Rule 23(b)(2) to include the 

monetary claims here. 

B 

Against that conclusion, respondents argue that their 

claims for backpay were appropriately certified as part of

a class under Rule 23(b)(2) because those claims do not

“predominate” over their requests for injunctive and declaratory relief. They rely upon the Advisory Committee’s 

statement that Rule 23(b)(2) “does not extend to cases in

which the appropriate final relief relates exclusively or 

predominantly to money damages.” 39 F. R. D., at 102 

(emphasis added). The negative implication, they argue, 

is that it does extend to cases in which the appropriate

final relief relates only partially and nonpredominantly to 

money damages. Of course it is the Rule itself, not the 

Advisory Committee’s description of it, that governs. And 

a mere negative inference does not in our view suffice to 
24 WAL-MART STORES, INC. v. DUKES 

Opinion of the Court 

establish a disposition that has no basis in the Rule’s text,

and that does obvious violence to the Rule’s structural 

features. The mere “predominance” of a proper (b)(2) 

injunctive claim does nothing to justify elimination of Rule

23(b)(3)’s procedural protections: It neither establishes the 

superiority of class adjudication over individual adjudication nor cures the notice and opt-out problems. We fail to 

see why the Rule should be read to nullify these protections whenever a plaintiff class, at its option, combines its 

monetary claims with a request—even a “predominating 

request”—for an injunction. 

Respondents’ predominance test, moreover, creates 

perverse incentives for class representatives to place at 

risk potentially valid claims for monetary relief. In this 

case, for example, the named plaintiffs declined to include

employees’ claims for compensatory damages in their

complaint. That strategy of including only backpay claims 

made it more likely that monetary relief would not “predominate.” But it also created the possibility (if the predominance test were correct) that individual class members’ compensatory-damages claims would be precluded by

litigation they had no power to hold themselves apart 

from. If it were determined, for example, that a particular

class member is not entitled to backpay because her denial 

of increased pay or a promotion was not the product of

discrimination, that employee might be collaterally estopped from independently seeking compensatory damages based on that same denial. That possibility underscores the need for plaintiffs with individual monetary

claims to decide for themselves whether to tie their fates to 

the class representatives’ or go it alone—a choice Rule

23(b)(2) does not ensure that they have. 

The predominance test would also require the District

Court to reevaluate the roster of class members continually. The Ninth Circuit recognized the necessity for this 

when it concluded that those plaintiffs no longer employed 
Cite as: 564 U. S. ____ (2011) 25 

Opinion of the Court 

by Wal-Mart lack standing to seek injunctive or declaratory relief against its employment practices. The Court of 

Appeals’ response to that difficulty, however, was not to 

eliminate all former employees from the certified class,

but to eliminate only those who had left the company’s

employ by the date the complaint was filed. That solution 

has no logical connection to the problem, since those who 

have left their Wal-Mart jobs since the complaint was filed

have no more need for prospective relief than those who 

left beforehand. As a consequence, even though the validity of a (b)(2) class depends on whether “final injunctive

relief or corresponding declaratory relief is appropriate

respecting the class as a whole,” Rule 23(b)(2) (emphasis

added), about half the members of the class approved by

the Ninth Circuit have no claim for injunctive or declaratory relief at all. Of course, the alternative (and logical) 

solution of excising plaintiffs from the class as they leave

their employment may have struck the Court of Appeals 

as wasteful of the District Court’s time. Which indeed it 

is, since if a backpay action were properly certified for 

class treatment under (b)(3), the ability to litigate a plaintiff’s backpay claim as part of the class would not turn on 

the irrelevant question whether she is still employed at 

Wal-Mart. What follows from this, however, is not that 

some arbitrary limitation on class membership should be 

imposed but that the backpay claims should not be certified under Rule 23(b)(2) at all.

Finally, respondents argue that their backpay claims

are appropriate for a (b)(2) class action because a backpay 

award is equitable in nature. The latter may be true, but 

it is irrelevant. The Rule does not speak of “equitable” 

remedies generally but of injunctions and declaratory 

judgments. As Title VII itself makes pellucidly clear,

backpay is neither. See 42 U. S. C. §2000e–5(g)(2)(B)(i) 

and (ii) (distinguishing between declaratory and injunctive relief and the payment of “backpay,” see §2000e– 
26 WAL-MART STORES, INC. v. DUKES 

Opinion of the Court 

5(g)(2)(A)). 

C 

In Allison v. Citgo Petroleum Corp., 151 F. 3d 402, 415 

(CA5 1998), the Fifth Circuit held that a (b)(2) class would

permit the certification of monetary relief that is “incidental to requested injunctive or declaratory relief,” which it

defined as “damages that flow directly from liability to 

the class as a whole on the claims forming the basis of the 

injunctive or declaratory relief.” In that court’s view, such 

“incidental damage should not require additional hearings

to resolve the disparate merits of each individual’s case; it 

should neither introduce new substantial legal or factual 

issues, nor entail complex individualized determinations.” 

Ibid. We need not decide in this case whether there are 

any forms of “incidental” monetary relief that are consistent with the interpretation of Rule 23(b)(2) we have 

announced and that comply with the Due Process Clause.

Respondents do not argue that they can satisfy this standard, and in any event they cannot. 

Contrary to the Ninth Circuit’s view, Wal-Mart is entitled to individualized determinations of each employee’s

eligibility for backpay. Title VII includes a detailed remedial scheme. If a plaintiff prevails in showing that an

employer has discriminated against him in violation of the 

statute, the court “may enjoin the respondent from engaging in such unlawful employment practice, and order 

such affirmative action as may be appropriate, [including] 

reinstatement or hiring of employees, with or without 

backpay . . . or any other equitable relief as the court

deems appropriate.” §2000e–5(g)(1). But if the employer 

can show that it took an adverse employment action 

against an employee for any reason other than discrimination, the court cannot order the “hiring, reinstatement, or

promotion of an individual as an employee, or the payment 

to him of any backpay.” §2000e–5(g)(2)(A). 
Cite as: 564 U. S. ____ (2011) 27 

Opinion of the Court 

We have established a procedure for trying pattern-orpractice cases that gives effect to these statutory requirements. When the plaintiff seeks individual relief such as

reinstatement or backpay after establishing a pattern or 

practice of discrimination, “a district court must usually 

conduct additional proceedings . . . to determine the scope

of individual relief.” Teamsters, 431 U. S., at 361. At this 

phase, the burden of proof will shift to the company, but it 

will have the right to raise any individual affirmative 

defenses it may have, and to “demonstrate that the individual applicant was denied an employment opportunity 

for lawful reasons.” Id., at 362. 

The Court of Appeals believed that it was possible to 

replace such proceedings with Trial by Formula. A sample

set of the class members would be selected, as to whom 

liability for sex discrimination and the backpay owing as a 

result would be determined in depositions supervised by a 

master. The percentage of claims determined to be valid 

would then be applied to the entire remaining class, and

the number of (presumptively) valid claims thus derived

would be multiplied by the average backpay award in the 

sample set to arrive at the entire class recovery—without 

further individualized proceedings. 603 F. 3d, at 625–627. 

We disapprove that novel project. Because the Rules 

Enabling Act forbids interpreting Rule 23 to “abridge,

enlarge or modify any substantive right,” 28 U. S. C.

§2072(b); see Ortiz, 527 U. S., at 845, a class cannot be 

certified on the premise that Wal-Mart will not be entitled 

to litigate its statutory defenses to individual claims. And 

because the necessity of that litigation will prevent backpay from being “incidental” to the classwide injunction,

respondents’ class could not be certified even assuming,

arguendo, that “incidental” 

awarded to a 23(b)(2) class. 

monetary relief can be 

* * * 

The judgment of the Court of Appeals is 

Reversed. 
_________________ 

_________________ 

Cite as: 564 U. S. ____ (2011) 1 

Opinion of GINSBURG, J. 

SUPREME COURT OF THE UNITED STATES 

No. 10–277 

WAL-MART STORES, INC., PETITIONER v.

BETTY DUKES ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE NINTH CIRCUIT

[June 20, 2011] 

JUSTICE GINSBURG, with whom JUSTICE BREYER, 

JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, concurring 

in part and dissenting in part. 

The class in this case, I agree with the Court, should not

have been certified under Federal Rule of Civil Procedure 

23(b)(2). The plaintiffs, alleging discrimination in violation of Title VII, 42 U. S. C. §2000e et seq., seek monetary 

relief that is not merely incidental to any injunctive or

declaratory relief that might be available. See ante, at 20– 

27. A putative class of this type may be certifiable under

Rule 23(b)(3), if the plaintiffs show that common class questions “predominate” over issues affecting individuals— 

e.g., qualification for, and the amount of, backpay or compensatory damages—and that a class action is “superior” 

to other modes of adjudication.

Whether the class the plaintiffs describe meets the 

specific requirements of Rule 23(b)(3) is not before the

Court, and I would reserve that matter for consideration 

and decision on remand.1 The Court, however, disqualifies 

the class at the starting gate, holding that the plaintiffs

cannot cross the “commonality” line set by Rule 23(a)(2). 

—————— 

1The plaintiffs requested Rule 23(b)(3) certification as an alternative,

should their request for (b)(2) certification fail. Plaintiffs’ Motion for 

Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 47. 
2 WAL-MART STORES, INC. v. DUKES 

Opinion of GINSBURG, J. 

In so ruling, the Court imports into the Rule 23(a) determination concerns properly addressed in a Rule 23(b)(3) 

assessment. 

I 

A 

Rule 23(a)(2) establishes a preliminary requirement for 

maintaining a class action: “[T]here are questions of law or

fact common to the class.”2 The Rule “does not require

that all questions of law or fact raised in the litigation be 

common,” 1 H. Newberg & A. Conte, Newberg on Class 

Actions §3.10, pp. 3–48 to 3–49 (3d ed. 1992); indeed,

“[e]ven a single question of law or fact common to the

members of the class will satisfy the commonality requirement,” Nagareda, The Preexistence Principle and the

Structure of the Class Action, 103 Colum. L. Rev. 149, 176, 

n. 110 (2003). See Advisory Committee’s 1937 Notes on

Fed. Rule Civ. Proc. 23, 28 U. S. C. App., p. 138 (citing 

with approval cases in which “there was only a question of 

law or fact common to” the class members). 

A “question” is ordinarily understood to be “[a] subject 

or point open to controversy.” American Heritage Dictionary 1483 (3d ed. 1992). See also Black’s Law Dictionary 

1366 (9th ed. 2009) (defining “question of fact” as “[a]

disputed issue to be resolved . . . [at] trial” and “question of 

law” as “[a]n issue to be decided by the judge”). Thus, a 

“question” “common to the class” must be a dispute, either 

—————— 

2Rule 23(a) lists three other threshold requirements for class-action 

certification: “(1) the class is so numerous that joinder of all members is

impracticable”; “(3) the claims or defenses of the representative parties 

are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.”

The numerosity requirement is clearly met and Wal-Mart does not 

contend otherwise. As the Court does not reach the typicality and

adequacy requirements, ante, at 9, n. 5, I will not discuss them either, 

but will simply record my agreement with the District Court’s resolution of those issues. 
Cite as: 564 U. S. ____ (2011) 3 

Opinion of GINSBURG, J. 

of fact or of law, the resolution of which will advance the 

determination of the class members’ claims.3 

B 

The District Court, recognizing that “one significant issue common to the class may be sufficient to warrant certification,” 222 F. R. D. 137, 145 (ND Cal. 2004), found 

that the plaintiffs easily met that test. Absent an error of 

law or an abuse of discretion, an appellate tribunal has no

warrant to upset the District Court’s finding of commonality. See Califano v. Yamasaki, 442 U. S. 682, 703 (1979) 

(“[M]ost issues arising under Rule 23 . . . [are] committed 

in the first instance to the discretion of the district 

court.”).

The District Court certified a class of “[a]ll women employed at any Wal-Mart domestic retail store at any time

since December 26, 1998.” 222 F. R. D., at 141–143 (internal quotation marks omitted). The named plaintiffs,

led by Betty Dukes, propose to litigate, on behalf of the 

class, allegations that Wal-Mart discriminates on the basis 

of gender in pay and promotions. They allege that the

company “[r]eli[es] on gender stereotypes in making employment decisions such as . . . promotion[s] [and] pay.” 

App. 55a. Wal-Mart permits those prejudices to infect

personnel decisions, the plaintiffs contend, by leaving pay 

and promotions in the hands of “a nearly all male managerial workforce” using “arbitrary and subjective criteria.” 

Ibid. Further alleged barriers to the advancement of

female employees include the company’s requirement, “as 

a condition of promotion to management jobs, that em-

—————— 

3The Court suggests Rule 23(a)(2) must mean more than it says. See 

ante, at 8–10. If the word “questions” were taken literally, the majority

asserts, plaintiffs could pass the Rule 23(a)(2) bar by “[r]eciting . . . 

questions” like “Do all of us plaintiffs indeed work for Wal-Mart?” Ante, 

at 9. Sensibly read, however, the word “questions” means disputed 

issues, not any utterance crafted in the grammatical form of a question. 
4 WAL-MART STORES, INC. v. DUKES 

Opinion of GINSBURG, J. 

ployees be willing to relocate.” Id., at 56a. Absent instruction otherwise, there is a risk that managers will act 

on the familiar assumption that women, because of their 

services to husband and children, are less mobile than 

men. See Dept. of Labor, Federal Glass Ceiling Commission, Good for Business: Making Full Use of the Nation’s 

Human Capital 151 (1995). 

Women fill 70 percent of the hourly jobs in the retailer’s 

stores but make up only “33 percent of management employees.” 222 F. R. D., at 146. “[T]he higher one looks in

the organization the lower the percentage of women.” Id., 

at 155. The plaintiffs’ “largely uncontested descriptive 

statistics” also show that women working in the company’s

stores “are paid less than men in every region” and “that

the salary gap widens over time even for men and women 

hired into the same jobs at the same time.” Ibid.; cf. 

Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S. 618, 

643 (2007) (GINSBURG, J., dissenting). 

The District Court identified “systems for . . . promoting

in-store employees” that were “sufficiently similar across 

regions and stores” to conclude that “the manner in which 

these systems affect the class raises issues that are common to all class members.” 222 F. R. D., at 149. The 

selection of employees for promotion to in-store management “is fairly characterized as a ‘tap on the shoulder’ 

process,” in which managers have discretion about whose 

shoulders to tap. Id., at 148. Vacancies are not regularly 

posted; from among those employees satisfying minimum 

qualifications, managers choose whom to promote on the

basis of their own subjective impressions. Ibid. 

Wal-Mart’s compensation policies also operate uniformly 

across stores, the District Court found. The retailer leaves 

open a $2 band for every position’s hourly pay rate. WalMart provides no standards or criteria for setting wages 

within that band, and thus does nothing to counter unconscious bias on the part of supervisors. See id., at 146–147. 
Cite as: 564 U. S. ____ (2011) 5 

Opinion of GINSBURG, J. 

Wal-Mart’s supervisors do not make their discretionary decisions in a vacuum. The District Court reviewed 

means Wal-Mart used to maintain a “carefully constructed

. . . corporate culture,” such as frequent meetings to reinforce the common way of thinking, regular transfers of

managers between stores to ensure uniformity throughout the company, monitoring of stores “on a close and constant basis,” and “Wal-Mart TV,” “broadcas[t] . . . into 

all stores.” Id., at 151–153 (internal quotation marks

omitted).

The plaintiffs’ evidence, including class members’ tales 

of their own experiences,4 suggests that gender bias suffused Wal-Mart’s company culture. Among illustrations, 

senior management often refer to female associates as 

“little Janie Qs.” Plaintiffs’ Motion for Class Certification 

in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 13 (internal quotation marks omitted). One manager told an

employee that “[m]en are here to make a career and 

women aren’t.” 222 F. R. D., at 166 (internal quotation 

marks omitted). A committee of female Wal-Mart executives concluded that “[s]tereotypes limit the opportunities 

offered to women.” Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, at 16

(internal quotation marks omitted).

Finally, the plaintiffs presented an expert’s appraisal to

show that the pay and promotions disparities at Wal-Mart 

“can be explained only by gender discrimination and not 

by . . . neutral variables.” 222 F. R. D., at 155. Using

regression analyses, their expert, Richard Drogin, con-

—————— 

4The majority purports to derive from Teamsters v. United States, 

431 U. S. 324 (1977), a rule that a discrimination claim, if accompanied

by anecdotes, must supply them in numbers proportionate to the size of 

the class. Ante, at 17–18. Teamsters, the Court acknowledges, see 

ante, at 18, n. 9, instructs that statistical evidence alone may suffice, 

431 U. S., at 339; that decision can hardly be said to establish a numerical floor before anecdotal evidence can be taken into account. 
6 WAL-MART STORES, INC. v. DUKES 

Opinion of GINSBURG, J. 

trolled for factors including, inter alia, job performance, 

length of time with the company, and the store where an

employee worked. Id., at 159.5 The results, the District 

Court found, were sufficient to raise an “inference of discrimination.” Id., at 155–160. 

C 

The District Court’s identification of a common question,

whether Wal-Mart’s pay and promotions policies gave rise 

to unlawful discrimination, was hardly infirm. The practice of delegating to supervisors large discretion to make 

personnel decisions, uncontrolled by formal standards, has

long been known to have the potential to produce disparate effects. Managers, like all humankind, may be prey 

to biases of which they are unaware.6 The risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate 

culture that perpetuates gender stereotypes. 

The plaintiffs’ allegations resemble those in one of the 

—————— 

5The Court asserts that Drogin showed only average differences at

the “regional and national level” between male and female employees. 

Ante, at 16 (internal quotation marks omitted). In fact, his regression 

analyses showed there were disparities within stores. The majority’s

contention to the contrary reflects only an arcane disagreement about 

statistical method—which the District Court resolved in the plaintiffs’ 

favor. 222 F. R. D. 137, 157 (ND Cal. 2004). Appellate review is no

occasion to disturb a trial court’s handling of factual disputes of this 

order. 6An example vividly illustrates how subjective decisionmaking can be 

a vehicle for discrimination. Performing in symphony orchestras was 

long a male preserve. Goldin and Rouse, Orchestrating Impartiality: 

The Impact of “Blind” Auditions on Female Musicians, 90 Am. Econ.

Rev. 715, 715–716 (2000). In the 1970’s orchestras began hiring musicians through auditions open to all comers. Id., at 716. Reviewers were 

to judge applicants solely on their musical abilities, yet subconscious

bias led some reviewers to disfavor women. Orchestras that permitted

reviewers to see the applicants hired far fewer female musicians than

orchestras that conducted blind auditions, in which candidates played

behind opaque screens. Id., at 738. 
Cite as: 564 U. S. ____ (2011) 7 

Opinion of GINSBURG, J. 

prototypical cases in this area, Leisner v. New York Tel. 

Co., 358 F. Supp. 359, 364–365 (SDNY 1973). In deciding

on promotions, supervisors in that case were to start with

objective measures; but ultimately, they were to “look at

the individual as a total individual.” Id., at 365 (internal 

quotation marks omitted). The final question they were to

ask and answer: “Is this person going to be successful in 

our business?” Ibid. (internal quotation marks omitted).

It is hardly surprising that for many managers, the ideal

candidate was someone with characteristics similar to 

their own. 

We have held that “discretionary employment practices”

can give rise to Title VII claims, not only when such practices are motivated by discriminatory intent but also when

they produce discriminatory results. See Watson v. Fort 

Worth Bank & Trust, 487 U. S. 977, 988, 991 (1988). But 

see ante, at 17 (“[P]roving that [a] discretionary system

has produced a . . . disparity is not enough.”). In Watson, 

as here, an employer had given its managers large authority over promotions. An employee sued the bank under 

Title VII, alleging that the “discretionary promotion system” caused a discriminatory effect based on race. 487 

U. S., at 984 (internal quotation marks omitted). Four 

different supervisors had declined, on separate occasions,

to promote the employee. Id., at 982. Their reasons were 

subjective and unknown. The employer, we noted “had 

not developed precise and formal criteria for evaluating 

candidates”; “[i]t relied instead on the subjective judgment

of supervisors.” Ibid. 

Aware of “the problem of subconscious stereotypes and 

prejudices,” we held that the employer’s “undisciplined

system of subjective decisionmaking” was an “employment 

practic[e]” that “may be analyzed under the disparate 

impact approach.” Id., at 990–991. See also Wards Cove 

Packing Co. v. Atonio, 490 U. S. 642, 657 (1989) (recognizing “the use of ‘subjective decision making’” as an “em-
8 WAL-MART STORES, INC. v. DUKES 

Opinion of GINSBURG, J. 

ployment practic[e]” subject to disparate-impact attack). 

The plaintiffs’ allegations state claims of gender discrimination in the form of biased decisionmaking in both

pay and promotions. The evidence reviewed by the District Court adequately demonstrated that resolving those

claims would necessitate examination of particular policies and practices alleged to affect, adversely and globally,

women employed at Wal-Mart’s stores. Rule 23(a)(2), 

setting a necessary but not a sufficient criterion for classaction certification, demands nothing further. 

II 

A 

The Court gives no credence to the key dispute common 

to the class: whether Wal-Mart’s discretionary pay and promotion policies are discriminatory. See ante, at 9 (“Reciting” questions like “Is [giving managers discretion over

pay] an unlawful employment practice?” “is not sufficient to obtain class certification.”). “What matters,” the 

Court asserts, “is not the raising of common ‘questions,’” 

but whether there are “[d]issimilarities within the proposed class” that “have the potential to impede the generation of common answers.” Ante, at 9–10 (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 

84 N. Y. U. L. Rev. 97, 132 (2009); some internal quotation 

marks omitted). 

The Court blends Rule 23(a)(2)’s threshold criterion

with the more demanding criteria of Rule 23(b)(3), and

thereby elevates the (a)(2) inquiry so that it is no longer 

“easily satisfied,” 5 J. Moore et al., Moore’s Federal Practice §23.23[2], p. 23–72 (3d ed. 2011).7 Rule 23(b)(3) certi-

—————— 

7The Court places considerable weight on General Telephone Co. of 

Southwest v. Falcon, 457 U. S. 147 (1982). Ante, at 12–13. That case 

has little relevance to the question before the Court today. The lead 

plaintiff in Falcon alleged discrimination evidenced by the company’s 

failure to promote him and other Mexican-American employees and 
Cite as: 564 U. S. ____ (2011) 9 

Opinion of GINSBURG, J. 

fication requires, in addition to the four 23(a) findings, determinations that “questions of law or fact common to 

class members predominate over any questions affecting 

only individual members” and that “a class action is superior to other available methods for . . . adjudicating the 

controversy.”8 

The Court’s emphasis on differences between class 

members mimics the Rule 23(b)(3) inquiry into whether 

common questions “predominate” over individual issues. 

And by asking whether the individual differences “impede”

common adjudication, ante, at 10 (internal quotation

marks omitted), the Court duplicates 23(b)(3)’s question

whether “a class action is superior” to other modes of 

adjudication. Indeed, Professor Nagareda, whose “dissimi-

—————— 

failure to hire Mexican-American applicants. There were “no common 

questions of law or fact” between the claims of the lead plaintiff and the

applicant class. 457 U. S., at 162 (Burger, C. J., concurring in part and

dissenting in part) (emphasis added). The plaintiff-employee alleged

that the defendant-employer had discriminated against him intentionally. The applicant class claims, by contrast, were “advanced under the 

‘adverse impact’ theory,” ibid., appropriate for facially neutral practices. “[T]he only commonality [wa]s that respondent is a MexicanAmerican and he seeks to represent a class of Mexican-Americans.” 

Ibid. Here the same practices touch and concern all members of the 

class. 

8 “A class action may be maintained if Rule 23(a) is satisfied and if: 

“(1) prosecuting separate actions by or against individual class members would create a risk of . . . inconsistent or varying adjudications . . . 

[or] adjudications with respect to individual class members that, as a

practical matter, would be dispositive of the interests of the other 

members . . . ; 

“(2) the party opposing the class has acted or refused to act on

grounds that apply generally to the class, so that final injunctive relief 

. . . is appropriate respecting the class as a whole; or

“(3) the court finds that the questions of law or fact common to class

members predominate over any questions affecting only individual

members, and that a class action is superior to other available methods 

for fairly and efficiently adjudicating the controversy.” Fed. Rule Civ. 

Proc. 23(b) (paragraph breaks added). 
10 WAL-MART STORES, INC. v. DUKES 

Opinion of GINSBURG, J. 

larities” inquiry the Court endorses, developed his position

in the context of Rule 23(b)(3). See 84 N. Y. U. L. Rev., 

at 131 (Rule 23(b)(3) requires “some decisive degree of 

similarity across the proposed class” because it “speaks 

of common ‘questions’ that ‘predominate’ over individual

ones”).9 “The Rule 23(b)(3) predominance inquiry” is

meant to “tes[t] whether proposed classes are sufficiently

cohesive to warrant adjudication by representation.” 

Amchem Products, Inc. v. Windsor, 521 U. S. 591, 623 

(1997). If courts must conduct a “dissimilarities” analysis 

at the Rule 23(a)(2) stage, no mission remains for Rule

23(b)(3).

Because Rule 23(a) is also a prerequisite for Rule

23(b)(1) and Rule 23(b)(2) classes, the Court’s “dissimilarities” position is far reaching. Individual differences 

should not bar a Rule 23(b)(1) or Rule 23(b)(2) class, so 

long as the Rule 23(a) threshold is met. See Amchem 

Products, 521 U. S., at 623, n. 19 (Rule 23(b)(1)(B) “does 

not have a predominance requirement”); Yamasaki, 442 

U. S., at 701 (Rule 23(b)(2) action in which the Court noted 

that “[i]t is unlikely that differences in the factual background of each claim will affect the outcome of the legal

issue”). For example, in Franks v. Bowman Transp. Co., 

424 U. S. 747 (1976), a Rule 23(b)(2) class of AfricanAmerican truckdrivers complained that the defendant had 

discriminatorily refused to hire black applicants. We 

recognized that the “qualification[s] and performance” of 

individual class members might vary. Id., at 772 (internal 

quotation marks omitted). “Generalizations concerning

such individually applicable evidence,” we cautioned, 

“cannot serve as a justification for the denial of [injunc-

—————— 

9Cf. supra, at 2 (Rule 23(a) commonality prerequisite satisfied by

“[e]ven a single question . . . common to the members of the class”

(quoting Nagareda, The Preexistence Principle and the Structure of the

Class Action, 103 Colum. L. Rev. 149, 176, n. 110 (2003)). 
Cite as: 564 U. S. ____ (2011) 11 

Opinion of GINSBURG, J. 

tive] relief to the entire class.” Ibid. 

B 

The “dissimilarities” approach leads the Court to train

its attention on what distinguishes individual class members, rather than on what unites them. Given the lack of 

standards for pay and promotions, the majority says, 

“demonstrating the invalidity of one manager’s use of

discretion will do nothing to demonstrate the invalidity of 

another’s.” Ante, at 15. 

Wal-Mart’s delegation of discretion over pay and promotions is a policy uniform throughout all stores. The very 

nature of discretion is that people will exercise it in various ways. A system of delegated discretion, Watson held, 

is a practice actionable under Title VII when it produces

discriminatory outcomes. 487 U. S., at 990–991; see supra, at 7–8. A finding that Wal-Mart’s pay and promotions practices in fact violate the law would be the first

step in the usual order of proof for plaintiffs seeking individual remedies for company-wide discrimination. Teamsters v. United States, 431 U. S. 324, 359 (1977); see Albemarle Paper Co. v. Moody, 422 U. S. 405, 415–423 (1975).

That each individual employee’s unique circumstances will

ultimately determine whether she is entitled to backpay or 

damages, §2000e–5(g)(2)(A) (barring backpay if a plaintiff 

“was refused . . . advancement . . . for any reason other 

than discrimination”), should not factor into the Rule 

23(a)(2) determination. 

* * * 

The Court errs in importing a “dissimilarities” notion 

suited to Rule 23(b)(3) into the Rule 23(a) commonality 

inquiry. I therefore cannot join Part II of the Court’s

opinion.