1 (Slip Opin i o n) OCTOBER T ERM, 20 10 Sy llabu s N O TE : Wh er e it i s feas ibl e , a s y llab u s (h ead n ot e) wil lbe rel e as ed , as is bein g d o n e incon n ecti onwithth is cas e , a tth e ti meth e op in i o n is is s u ed

. Th e s y ll abu s con s titu tes n o p a rt of th e op in i o nof th eC o u r t bu t h a s be en pre p are dbyt h e Re po rte ro f De ci sio n s fo r t h e co nveni e nce of t h e reade r . Se e United Statesv. Detroit Timbe r& Lumb er Co., 200U. S

. 3 21, 337

. 

# SUPREME CO URT O FTHE UNI TED STATES
Sy llabu s 

### WAL-MART S T O R ES , IN C

. v . DU KES ET AL


### . CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 10–2 77. Ar g u ed M a r c h29, 201 1—Dec i ded Ju n e20, 2011 Res p ondent s , cu rrento rf o rm er em ployees of petitio n er Wal-Mart, sou gh tju dg m e n tag ain s t th e c o mpan yfor in ju n c tiv eand dec l ar ator y r e lief, pu n i tiv edamag e s, an d bac kpay , onbeh a lf of th em selv es an d a nationwide class of some 1

. 5 million fem a le employees , because o f Wal-M a r t ’ s all e g e d disc r i mination ag a i nst women in v i olation of T i t l e VII of th e Civil Righ ts Ac t of 1964. Th ey c l aim th at loc a l man a g e r s exercise their discretion ove rpay and p r o m otions disproportionatel y in favor o f me n, w h ichha s a nunl awful di spara t e impa ct on female employ ees; an d th at W a l-M a r t ’ s r e fu sal t oc abinit s m a n a g e r s ’ au thor ityamounts to dis p ar ate tr eatment. T h e Distr i c tCo ur t c e r t ified th e c l ass, fin d in gth at r e spon den t s sa ti sfied Feder a l Ru le of Civ i l Pr oc edu r e 23(a), an d Ru le 23(b)(2)’ s r e qu i r emen t of sh owin gth at “th e par t yopposin gthe c l ass ha s ac tedorr e fused to ac t ongr ounds that a pply genera lly t ot h e cla s s , s ot h a tfina l inj unct ive relief or corre sponding decl aratory relief is appr opriate respecting the class as a whole.” The Ninth Circuit subs ta ntia llya ffirmed, concluding, in t e r alia, that r e sp ondents met Rule 23( a)( 2 )’s commonality requirement an d th at th eirbac kpayc l aims c o u l d be cer t ified as pa r tof a (b)(2) class because those claims d i d not predominate over thedeclaratory an d in ju n c tive r e lief r e qu ests. It al so r u led th at th e c l ass ac tion c o uld be manag e ablytr ied without de priving Wal-Mart o f its right to present its statutory defense s if th e Dis t rictCourts e lect ed ara ndom set of c l aims forv a lu ation an d th en extrapolated the validity and value of the untested clai m s fr om the sample set. Held : 1. The certification of the p l aintiff clas s wa s not cons is tent with Ru le 23(a). Pp. 8–20. (a) Ru le 23(a)( 2 ) r e qu ir es a par t yseekin g c l ass c e r t ific ationto2 WAL-MART S T ORES, INC. v. DUKES Sy llabu s pr ov e that th e c l ass has c o mmon “que sti o ns of law or fact.” Their c l aims must d e pend upon a c o mmon c o ntention of suc h a natur ethat itis ca pab l e of cla s s w ide res o lut i on—which m e a n s t h atdet e rm ina

tion of it s truth or falsity wi ll reso lv e an i ssue tha ti s c e ntr a l to the validity of eac hone of the cl aims in one stroke. Here , p r oof of com

m o na lit y neces s a rily overlaps wit hres p ondent s ’ m e rits cont ent i on that Wal-M a r teng a g e s in a patter norpr ac tic eof disc r i mination. The crux of aTitle VII inquiry is “the reason for a p a rticular em

ployment decision,” Cooperv. F e de ral Re s erveBankof R i chm o nd , 467 U. S. 867, 876 , and respond e nts wishto sue for millions of employ

ment decisions at once. Without so me gl ue holdingtogetherthe al

leged reasons for those decisions, it willbe impos s ib le to say thatex aminat ion of all the c l as s member s’ c l a i ms willpr oduc e a c o mmon an swerto th e c r u c i al disc r i min a tionqu es tion

. Pp. 8–12. (b) Gen eral T e lephon e Co. of Southw estv. Falcon , 457 U. S. 147 , desc r ibes the pr operappr oac hto c o mmonality

. On the fac t s of thi s c a se, th e c o nc eptu al g a p bet w eenani n div i du al’ s disc r i mi n a tionc l aim and “the existence of a class of pe rsons who have suf f ered the same injury,” id. , at 157 –1 58, mu st be br idg e d by“[s]ig n i fic a n tpr oof th at an employer o p erated under a gene ra l policy of dis crim i na t i on,” id., at 1 59, n

. 15. Su c hpr oof is absen t h e r e . Wal-M a r t ’ s an n o u n c e d pol

ic yforb ids sexdisc r i min a tio n , an d th e c o mpan yh a s pen a lties forde

nials of e q ualopportunity. Respondents’ only evidenceof a general disc r i min a tionpolic yw a s a soc i ologist’ s a n aly s is a sser t i n gth at WalMa rt ’s corpor a t e cult ure m a de itvu ln er able to g e n d erbia s . Bu t be

ca us e he could not es timate wha t percentof Wal-Ma rt em ploym e nt dec i sions mig h t be deter m i n ed byster eoty p ic al thinking , his testi

monywas worlds awayfr om “sig nific a nt p r oof” that Wal

- M a r t“oper

ated u n d era gen e r a l polic yof disc r i min a tio n .” Pp. 12–14. (c) Theonly co rporate policy thatthe plain t iffs’ evidence convinc

ingly establ is hes is W a l-Mart’s “pol icy” of giving loca l supervisor s discretion over employment matter s. Wh ile such a policy could be th e basi s of a Title VII dis p ar ate-im pac tc l aim, r e c o gnizin gth at a c l aim “c an” ex ist doe s not mean that ev ery employee in a company wit ht h a tpolicy ha s acom m o n cla i m . In acom p a n y of Wa l-Ma rt ’s size and geographical sc ope, it is unlikely that all ma nagers would exercise their discretion in a c o mmon way without some c o mmon di

r e c t ion. Respondents’ atte mpt to s h ow s u ch direct ionb ym e a n s of sta t is tic a l an dan ec dotal ev iden c efalls well sh or t. Pp. 14–20.

2. Respon den t s’ bac kpayc l aims wer eim pr oper ly c e r t ified u n d er Ru le 23(b)(2). Pp. 20–2 7. (a) Clai ms formonetar yr e l i ef maynotb ec e r t ified underRule 23(b)( 2 ), at least wh er e th e mon e tar yr e l i ef is not inc i dental to th e req u es ted inj unctive ordecla r a t ory relief. It is unneces s a ry to decide3 Cite as: 56 4 U

. S. ____ (2011) Sy llabu s whether mone tary claims c a n ever be ce rtified under the Rule be

c a u s e, at a mi n i mu m, c l aim s forin div i du alized r e lief, l i ke bac kpay , ar e ex c l u d ed. Ru le 23(b)(2) applie s only when a single , indivisible remedy wouldprovide relief to each c l ass member

. The Rule’ s his

t o ry a n d s t ruct ure indica t e t h a tin div i dua lized monetar yc l aims be

long insteadin Rule 23(b)(3), withits pro c edural protections of pre dominanc e, super i or ity , mandator ynotic e , and the r i gh t to optout. Pp. 20–2 3. (b ) Res p ondents nonetheless a r g u e th at th eirbac kpa yc l aims were a ppropri a t ely cert ified under Ru le 23(b)(2) bec a u s e th ose c l aim s do not “pr e dominate” ov ertheirin ju nc tive an d dec l ar ator y r e lief r e quests. Tha t inter p r e tationhas no basis in the Rule’s text and does obvious violence to the Rul e ’s stru ct ura l fea t ures . Them e re “ p re dominance” of a proper (b)( 2) injunc tiv ec l aim does noth ingto just ify elimin at in gRu le 23(b)(3)’ s pr oc edu r al pr otec tion s, an d c r e ates in c e n tiv e s forc l ass r e pr esentativ e s to pl ac e at r i sk potenti a lly v a lid mone

t a ry relief cla i m s . Moreove r , adis t rictcourtwould hav et oreeva l u ate the roster of class members co ntinuously to exci se those who leave their e m ployment an d become inel igible for cla s s wide injunc

t ive or decla r a t ory relief. By cont rast, in a properly certified (b)(3) c l ass ac tionfo rbac kpay , it wou l d be ir r e l e v a n twh eth e r th e pl ain t iff s are still empl oyed at Wal-Mart. It foll ows that backpay clai m s sh ou ld n o t be c e r t ified u n d erRu le 23(b)(2)

. Pp. 23–26. (c) It is un nece s s a ry t o decide whet her t h ere a r e a n y form s of “i n c i dental” mon e tar yr e lief that ar e c o nsiste nt with the abov einter p r e tationof Ru le 23(b)( 2 ) an d th e Du e Proce ss Clause because respon

den t s’ bac kp ayc l aims a r e n o t in c i den t al to th eirr e qu ested injunction. W a l-Mart is ent i tled toindivi dualized deter m inations o f each employee’s eligibi lity fo r backpay

. On c ea plain t iff establi s h e s a pa t t e rn or pra c t i ce of dis crim i na tion, adis t rictcourtm u s tus ua lly conduct “additional proceedings .

. . to de termine the scope of indi

vidual relief.” Teamste rsv. United Sta t es , 431 U. S. 32 4, 361. Th e com p a n y ca n t h en ra is e individua laffirm ative defenses and demon

s t rate that its action was lawful. Id. , at 362. Th e Nin thCir c u it er r e d i nt r y i n gt or e p l a c es u c hp r o c e e d i n g s w i t hT r i a lb yF o r m u l a . B e c a u s e Ru le 23 c a n n o t be in ter p r e ted to “abr idg e , en lar g e or modifyan ysu b

stan tiv er i gh t,” 28 U. S. C. §207 2(b) , acla s s ca nnotb ece rt ified on t h e premise that Wal-Mart will not be en titledto litigate it s sta t utory de

fen s es to in div i du al c l aim s . Pp. 26–2 7. 603 F. 3d 57 1, r e v e r s ed.

S CALIA , J., delivered the opinion of the Cour t, in whic h R OBERTS , C. J., and K ENNEDY , T HOMAS , an d ALITO , JJ., joined, and in which G IN SBURG , B REYER , S OTOMAYOR , and K AGAN , JJ., join ed as to P a r t s I an d III

.4 WAL-MART S T ORES, INC. v. DUKES Sy llabu s G IN SB U R G , J., filed an opinion concurring i npart and dissenting in part, in which B REYER , S OTOMAYOR , an d K AGAN , JJ., join ed._________________

_________________ 1 Cite as: 56 4 U

. S. ____ (2011) Opinion of theCourt
NOTIC E : Th is op i n ionis subjec t to f o rma lrevi si onbef o r e publicat ioninth e p r eli m in ary p rin t of th e U n it edS t at es R e p o rts
. R e ad ers ar e r e qu es ted to n o tif yth e R e p o rt e rof D e c i s i on s , Su p r em e C o u rt of th e U n ited St at es , Wa s h

ington, D. C. 2054 3, of any typ o gra p hical or other f o rmal err o rs , in or der th atc o rr ect i on sm a y b e mad eb e f o r e th ep r e lim in aryp rin t go es t o p r es s . 

# SUPREME CO URT O FTHE UNI TED STATES
No. 10–2 77 

### WAL-MART ST ORES, INC., PETI TIONER v. BETTY DU KES ET AL


### . ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE NINT H CIRCUIT [Ju n e20, 2011 ] 

### J USTICE 

### S CALIA 

### delivered the opini o n of the Co urt. We are presented with one of the most expansive class actions ever. The District Court a n d the Court of Appeals approved t h e certification of a class comprising about one and a half million pl aintiffs, current and former female employees of petitione rWal-Mart who allege that the discretion exercised b ytheirlocal supervisors over p a y and promotion matters violates Title VII by discriminat

ing against women. In additi on to injunctive a n d declara

tory relief, the plaintiffs seek an award of b a ckpa y. W e consider whether the certificatio nof the p l aintiff class was consistent with Federal Rules of Civil Procedure 23(a) and (b)(2). I A Petitioner Wal-Mart is the Nati on’s largest pri v at e employer. It operates four types of retail stores through

out the country: Disco unt Stores, Supercente r s, Neighbor

hood Mark e t s, and Sam’s Clubs. Those stores are divide d into seven nationwide divisions, which in turn comprise 4 1 regions of 8 0 to 85 stores apiece. Each store has between2 WAL-MART S T ORES, INC. v. DUKES Opinion of theCourt 

### 40 and 53 separate departments a n d 80 to 50 0 staff posi

tions. In all, Wal-M a rt operate s approxim ately 3,400 stores and employs more than one million p e ople. Pay and promotion decisions at Wal-Mart are generally committed to local managers’ bro a d discretion, which is exercised “in a largely subjective manner.” 222 F. R. D. 137, 145 ( N D Cal. 2004). Local store managers may in

crease the wages of ho urly employees (within limits) with only limite dcorporate oversight. As for sa la ried employ

ees, such a s store ma nagers and their deputies, high er corporate authorities have dis cretion to set their pay wit h

in preestablished ranges. Promotions work in a similar fa shion. Wa l-Mart per

mits store managers to apply their own subjective criteri a when selecting candida t es as “support managers,” which i s the first st ep on the p a th to man a gement. Admission to Wal-Mart’s management training program, h o wever, does require that a candidate meet c e rtain objective criteri a, including a nabove-average performance rating, at leas t one year’s tenure in the applicant’s current position, anda willingness to relocate. But e x cept for those requirements, regional an d district managers have discretion to use their own judgm e nt when selecting candidates for management training. Promotion tohigher offi ce—e.g. , assistant man

ager, co-ma nager, or s t ore 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 certifi ed class, are three cur

rent or former Wal-M a rt employees who all e ge that the company di scriminated against th em on the basis of their sex by denying them eq ual pay or promotions, in violatio n of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as3 Cite as: 56 4 U

. S. ____ (2011) Opinion of theCourt 

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

### Betty Du ke s began working at a Pittsburgh, California, Wal-Mart in 1994. She started as a cashier, but later sought and received a promot ion to customer service man

ager. Afte r a series of disciplin ary violations, however, Dukes was demoted back to ca shier and then to greeter. Dukes concedes she violated company policy, but contends that the disciplinary actions were in fact retaliation for invoking i n ternal complaint procedures and that m a le employees have not been discipli ned for si milar infrac

tions. Dukes also clai ms two ma le greeters in the Pitts

burgh store are paid more than she is. Christine Kwapnoski has work ed at Sam’s Club stores in Missouri and California for most of her ad ult life. Sh e has held anumber of positions, including a supervisory position. S h e claims t hat 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,’ t o wear some makeup, and to d r ess a little better.” Ap p . 1003a. The final named plaintiff, EdithArana, worked at a Wal-Mart s t ore in Dua rte, California, from 1 995 to 200 1. In 2000, she approach ed the store manager on more than one occasion about ma nagement training, but was b r ushed off. Arana concluded she was bein g denied op portunity fo r advancement because of h e r sex . She initiated internal complaint procedures, whereupon she was told to apply directly to the district manag er if she thought her store manager was being u n fair. Arana, however, decided against tha tand neve r applied for management training again. In 2001, she was fired for failure t o comply with Wal-Mart’s timekeeping policy. These plaintiffs, respondents here, do not allege that

——————

1 The c o mplaint inc l uded seven named plaintiffs, but onlythr ee r e m a in pa rtof t h e ce rt ified cla s s a s na rrowed b yt h e Courtof Appea l s .4 WAL-MART S T ORES, INC. v. DUKES Opinion of theCourt 

### Wal-Mart has any express corporate policy against th e advancement of women. Rather, they clai m that the i r local mana gers’ discre tion over pay and promotions i s exercised disproportionately in favor of men, leading to an unlawful disparate impact on fe male empl o y ees, se e 4 2 U. S. C. §20 00e–2(k). And, respo n dents say, because WalMart is aware of this effect, its refusal to cabin its manag

ers’ autho rity amou nts to dis p arate treatment, see §2000e–2(a)

. Their complaint seeks injunctive and de

claratory re lief, punitiv e damages, and backpay. It does not ask for compensatory damages

. Importantly for our purposes, respondents claim that the discrimination to which they have beensubjected is common to all Wal-M a rt’s female employees. The bas ic theory of th eir case is that a stron gand uniform “corpora t e culture” permits bias agains t wo men to infect, perhap s subconsciously, the dis cretio nary decisionma k i ng of each one of Wal- Mart’s thou sands of managers—thereby mak

ing every woman at the company the victim of one c o m mon discriminatory practice. Re spondents therefore wish to litigate the Title VI I claims of all femal e e m ployees at Wal-Mart’s stores in a nationwide class action. C Class certif i cation is g o verned byFederal R u le of Civil Procedure 2 3

. Under R u le 23(a), the party se eking certif i

cation must demonstrate, first, that: “(1) the class is so numerous that joinde r of all members is impracticable, “(2) there a r e questions of law or fact common to the class, “(3) the clai ms or defenses of the representativ e par ties are typical of the claims or de fenses of th e class, and “(4) the representative parties will fairly and ade

quately pro t ect the interests of the class” (pa r agraphCite as: 56 4 U

. S. ____ (2011) 5 Opinion of theCourt 

### breaks added). Second, the proposed cl ass mustsatisfy at least one of the three requirements lis ted in Rule 23(b). Respondents rely on Rule 23(b)(2), which applies when “the party opposing the class has acted or refused to ac t on grounds that apply generally to the class, so t hat final injunctive relief or corresponding declarat ory relie f is appropriat e respecting the class as a whole.” 2 

### Invok i ng these provisi o ns, respond e nts movedthe Dis

trict Court to certifyaplaint iff cl ass consisting of “ ‘[a]ll women em ployed at any Wal-Mart domestic retail store at any tim e since December 26, 1998, who have been or may be subjected to W a l-Mart’s challenged pay and ma n agement track promotions policies and practices.’ ” 2 22 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 “ques

tions of law or fact common to” all the women of Wal-Mart , as Rule 23(a)(2) requires, respondents relied chiefly o n three forms of proof: statistical evidence about pay and promotion disparities between m e n and women at the company, a n ecdotal reports of dis crimination from about 120 of Wal-Mart’s fem a le employees, and the testimony of a sociol ogis t, Dr. Willi am Bielby, who conducted a “socia l

——————

2 Ru le 23(b)(1) allows a c l as s to be main t a in ed wh er e “p r o sec u tin g separ a te ac t i o n s byorag ainst in div i du al c l as s member s wou l d c r e ate a ris kof ” eithe r“(A) inc o nsistent or v a r y ingadjudic a ti ons,” or“(B ) adju dic a t i on s . . . th at, as a pr ac tic a l mat t e r , wo uld be dis p ositive of the inter e sts of the othermemb er s not pa rtie s to the indivi dual adjudica

tions or would subst a ntia lly impair or im peded their abili ty to prote c t th eirin ter e sts
. ” Ru le 23(b)( 3 ) st at e s tha ta c l a ss may be m a intained where “questions of law or f a ct c o mmon to c l ass mem b er s pr edominate ov eran yqu estion s affec t in gon lyin div i du al member s,” an d a c l a s s ac tionwou l d be “su p er iort ooth e rav ail able meth ods forfair lyan d efficient l y a d judica t i ng t h e cont rove rsy.”The applicabili ty of these provis ions to the pla i ntiff cla s s is not b e fore 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 it s 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 underRule 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 re spondents’ motion and certified their proposed class. 3 

### DA 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). Italso agreed with the District Court that the named plaintiffs’ claims were sufficiently typical of the class as a whole

——————

3 The District Court excluded backp ay claims based on promotion opportunities that had not been public ly posted, for the reason that no applicant data could exist for such positions. 222 F. R. D. 137, 182 (NDCal. 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 173.7 Cite as: 56 4 U

. S. ____ (2011) Opinion of theCourt 

### to satisfy Rule 23(a)(3) , and that they could serve as ade

quate class representatives, see Rule 23(a)(4). Id. , at 614– 615. With respect to the Rule 23(b)(2) question, the Ninth Circuit hel dthatres p ondents’ b a ckpa y clai ms could b e certified as part of a(b)(2) class because they did n o t “predominat[e]” over the requests for declaratory an d injunctive relief, mea n ing th ey were not “ s uperior in strength, i n fluence, or authority” to the n o nmonetary claims. Id. , at 616 (internal quotation marks omitted). 4 

### Finally, the Courtof Appeals determined thatthe actio n could be manageably tried as a class action because the District Court could a d opt the ap proach the Ninth Circ uit approved in Hilao v. Estate of Marcos , 103 F. 3d 767, 782– 787 (1996). There compensatory damages for some 9,5 41 class memb ers were ca lculated by selecting 137 claims at random, referring tho s e 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 em

ployed in this case.” Id. , at 627. It would allow Wal-Mart “to present individual defenses in the randomly selected ‘sample cases,’ thus re vealing the approximate percentage of class members whose unequal p a y or nonpromotion was due to something other than gender discrimination.” Ibid. , n. 56 (emphasis deleted).

——————

4 To enable tha tr e sult, the C o ur t of Appeal s tr imme d the (b)(2) c l as s in t w o wa ys : Firs t , itrem a nded t h a tpa rtof t h e cert ifica t ion order which in clude dres p ondents ’ punitive-da m a g es cla i m in the (b )(2 ) class , so tha t the Di str i c tCour t m i gh t c o nsiderwhetherthat migh t c a use t h e mon e tar yr e lief to pr edomin ate. 6 03 F. 3d , at 6 21. Sec o n d , it ac c e pted in pa rtWa l-Ma rt ’s a r gum e ntt h a ts i nce cla s s m e mbers whomit no longer employed had no standing to s e e ki n j u n c t iv eo rd e c l a r a t o r y r e lief, as to them monetar y c l aims mu st p r edominate. I texcluded from the c e r t ified clas s “those pu tativ ec l as s m e mber s who wer eno long er Wal-Mart employees at the time Plaintiffs’ complaint was filed ,” id. , at 623 (emph a si s added).8 WAL-MART S T ORES, INC. v. DUKES Opinion of theCourt 

### 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.” C a lifanov. Yamasaki , 4 42 U. S. 682, 700–701 (1979). In or der to justify a departu re from that rule, “a class representative must be part of the class and ‘possess the same interest and suf f er the sam e injury’ as the class members.” Eas t T ex. Mot o r Freigh tSyst em, Inc. v. Rodriguez , 43 1 U. S. 395, 403 (1977) (quoting Schlesin ge rv. Rese rvis ts Comm. to Stop th e War , 418 U. S. 208, 216 (1974)). Rule 23(a) ensures that the nam ed plaintiffs a r e appropriate repres entatives o f the class whose clai ms they wish to litig ate. The Rule’s four requirements—numerosity, comm onality, ty picality, an d adequate representation—“effectively ‘limit the class claims to those fairly encompassed by the n a med plain

tiff ’s claims.’ ” General Telepho n e Co. of Southwestv. Falcon , 457 U. S. 147, 156 (1982) (quoting General Tele

phone Co. of Northwestv. EE OC, 446 U. S. 318, 33 0 (1980)). A The cruxof this case is commonalit y—the rule requirin g a plaintiff to show that “there are questions of law or fact common to the class.” Rule 23(a)(2). 5

### That language is

——————

5 We hav epr eviouslyst ated i nthis c o ntex t that “[t]he c o mmonali ty an d ty pic a lity r e qu ir emen ts of Ru le 23(a) t e n dto mer g e. Bothserv e as guidepos t s for det e rm ining w h et her u n der th e pa rt icula rc i rcum s t a nces maintenanc e of a c l ass ac ti on is economical and whether the name d plain t iff’ s c l ai m an dth e c l a ss c l aim s ar e so in ter r e late d th atth e in t e r ests of the cl ass mem b ers will be f a irly and adequa tel yprotected in their absence. Those requi r ements th er efor e also tend to mer g e with the adequacy-of-representation re qu ir emen t, alth oughthe latte r requirement also raises concerns abo utt h ecom p et encyo f cla s s couns el and conflicts of interest.” Gen eral T e lep h one Co. of So uthw estv. Fa l

-9 Cite as: 56 4 U

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### easy to misread, since “[a]ny competently crafted cla s s complaint literally raises common ‘questions.’ ” Nagareda , Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 13 1–132 (2009). For e x ample: Do all of us plaintiffs indeed work for W a l-Mart? Do our manag

ers have discretion over pay? Is that an unlawful em

ployment p r actice? What reme dies should we get? Recit

ing these questions is not sufficient to obtain class certification. Commonality re quires the plaintiff to de m onstrate th at the class members “have suffered the same injury,” Fal c on , supr a , at 157. Thi s does not mean merely that they have all suff ered a violation of the same pro

vision of la w. Title VII, for example, can be violatedin many ways —by intentional dis crimination, or by hiring and promo t ion criteri a that result in disparate impa ct, and by the use of these practice s on the part of man y different superiors in a single com p any. Quite obviously, the mere cl aim by em ployees of the samecompany that they have s u ffered a Ti tle VII injury, or even a disparate

impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims mus tdepend upon a common contention—for ex

ample, the assertion of discriminatory bias on the part of the same s u pervisor. That common contenti on, moreov er, must be of such a na ture that it is capable of classwide resolution—which m e ans that determination of its truth or falsity will res o lve a nissue tha tis central to the valid

ity of each one of the cl aims in on estrok e . “What matt ers to class certification .

. . is not the rais

ing of co mmon ‘questions’—even in dro v es—but, rather the capacity of a classwide proceeding to gen

-

—————— con , 457 U. S. 147, 1 5 7 –15 8, n . 13 (1982). Inligh tof ou r dispos itionof the commonality q u estion, however , it is unneces s a ry to res o lve whether resp ondents have satisfiedth e typicality and adequate

representation requirements of Rule 23(a).10 WAL-MART S T ORES, INC. v. DUKES Opinion of theCourt 

### erate common answers apt to dri v e the resolution of the litigation. Dissi milarities within the proposed class are what have the potential to impede the gen

era tion o f co mmon ans wers. ” Na ga reda, su p ra , at 132. Rule 23 does not set forth a mere pleading standard. A party seeki n g class certification must affirmatively dem

onstrate his compliance with th e Rule—that is , he mu st b e prepared to prove that there are in fact sufficiently nu

merous parties, common questions of law or fact, etc. W e recognized in Falcon th at “sometimes it may be necessary for the cour t to p r obe behind the p l eadings before coming to rest on the certification question,” 457 U. S., at 160, an d that certific a tion is proper only if “the trial c o urt is satis

fied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been s a tisfied,” id. , at 161; see id. , at 16 0 (“[A]ctual, not presumed, conformance with Rule 23( a) remains .

. . indispens able”). Frequently that “rigoro us analysis” will entailsome overlap with the merits of the plaintiff ’s underlying claim. That canno t be helped.
“ ‘[T]he clas s determination generally involves considera

tions that are enmesh ed in the f a ctual and legal issues comprising the plaintiff ’s cause of action.’ ” Fa lc on , supr a , at 160 (quo ting Coopers & Lybrandv. Li vesa y , 437 U. S. 463, 469 (1978); some internal quotation marks omitted). 6

——————

6 A state m ent i none of o u r p r ior cases, Eisenv. Carlisle& Jacq uel i n , 417 U. S. 1 5 6 , 177 (19 74), is some time s mist aken lyc i ted to th e c o n tr ar y : “We find nothingin ei therthe language or history of Rule 23 that gives acourta n y a u t h orit y t ocond uct a preliminary inquiry into the mer i ts of asui tin or derto d e ter m ine whether it m a y be mainta ined a s a c l ass ac t i on .” Bu t inth at c a se, th e ju dge h a d c o n d uc t e d a pr elimin a r y inquir yinto the mer i ts of a s u it, no t in ord e r to determine the propriety of c e r t ific ationu n d erRu les 23(a) an d (b) (h e h a d alr e ad ydon eth at, s e e id. , at 165), b u t inor derto sh ift th e c o stof n o tic er e qu ir ed byRu le 23(c)(2) from the plaintiff to the defe ndants. To the extent the quote d statement goes beyond the permissibi l i tyof a mer i ts i n quir yfor any ot her pret ria lpurpos e, itis t h e pures tdi ct uma n d is c o nt ra dict ed by our ot he r ca s e s .11 Cite as: 56 4 U

. S. ____ (2011) Opinion of theCourt 

### Nor is there anything unusual ab out that consequence: The necessity of touching aspects of the merits in order to resolve preliminary matters, e. g. , jurisdiction and venue, is a familia rfeature of litigation. See Szabov. Bridgepo r t Machines, Inc. , 249 F. 3d 672, 676–677 (CA7 2001 ) (Easterbrook, J.). In this case, proof of commonalit y necessarily overlaps with respondents’ merits contention that Wal-Mart en

gages in a p a ttern orpr acti ceof discrimination. 7 

### That is so because, in resolving an individu al’s Title VII claim, the crux of the inquiry is “the reason for a particular employ

ment decision,” Cooperv. FederalReserv e B a nk of Rich

mond , 467 U. S. 867, 8 76 (1984). Here respondents wish

——————

Perhaps the most common example of co nsidering a merits question at th e Ru le 2 3 s t ag e ar ises inc l as s-ac tio nsu its forse c u r i ties fr au d. Ru le 23(b)( 3 )’ s r e qu ir emen t th at “ q u e stio n s of law orfac tc o mmont o class me mber s predominate over any que s tions affectin g only i n divid

ua l m e m b ers” would oft e n b ea nins u perab l e ba rrier t ocla s s cert ifica

tion, since each of the indivi dual investors would haveto prove reliance on the alleged misrepresen t ation. But t h e pr oblem di ssip a tes if th e plaintiff s c a n establi s h the applic ab ili tyof the so-c alled “fr a ud on the mar k et” pr esu m ption, whic h say s th at all tr ader s w h o pu r c h a se stoc k in an efficient market are presumed t ohave relied on t h e a ccura c yof a c o mpan y ’ s pu blicst ate m en t s . To invoke this presumpt ion, the plain

tiffs seek in g23(b)( 3 ) c e r t ifi c ationmu st p r ove that their shares were traded on an efficient market, Erica P. Jo hn Fun d, In c. v. Halliburto n Co. , 563 U. S. ___, ___ (2011) (slip op., at5), an issue t h ey will surely have to prove againat tr ial in or derto make out theirc a se on the mer i ts.

7 In a patter n -or - pr ac tic ec a se, the plainti ff tr ies to “es t abl ish bya preponderance of the e v idence that

. . . dis criminationwas the com

pany’s standard operating procedur e[ ,] th e regular ra ther than th e unus ua l pra c tice.” Team st ersv. Uni t ed States , 431 U. S. 324, 35 8 (197 7); see al so Franks v. Bowman Transp. Co. , 424U. S. 74 7, 7 7 2 (197 6). If he s u cceeds, that show ing will support a rebut t able inference that a ll c l a ss member s wer e v i c t ims of the disc r i minator ypr ac tic e , and will justify “anaward of pros pective re lief,” such as “an injunctive orde r ag ainst the c o ntinuation of the disc r i minator ypr ac tice.” Team st ers , supra , at 361.12 WAL-MART S T ORES, INC. v. DUKES Opinion of theCourt 

### to sue about literally million s of employmen tdecisions at once. Without some glue holding the alleged rea sons for all those decisions together, it wi ll be impos s ible to say that examination of a l l the class members’ claims for relief will produce a common answer to the crucial question why was I disfa v ored

. B This Court’s opinion i n Falcond e scribes how the com

monality issue must be approached. There an employee who claimed that he was delib erately denied a promotion on account of race obtained ce rtification of a class compris

ing all employees wrongfully denied promotions and all applicants wrongfully denied jobs. 457 U. S., at 152. We rejected th at composit e class for lack of com m onality and typicality, e x plaining: “Conceptually, there is a wide gap between (a) an in

dividual’s claim that h e has b een denied a pr omotion [or higher pay] on dis criminatory grounds, and his otherwise unsupported allegation that the compan y 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 cla ss claim wi ll share common ques t ions of law or fact and that the individual’s claim will be typi

cal of the class claims.” Id. , at 157–158. Falconsuggested two ways in wh ich that conceptual ga p might be bridged. First, if the employer “used a biased testing procedure to evaluate both applicants for employ

ment and i n cumbent employees, aclass actio non beha lf of every applicant or employee who might have been prej u diced by th e test clearly wo uld satisfy the commonality and typical i ty requirements of R u le 23(a).” Id., at15 9, n. 15. Seco nd, “[s]ignificantproof that an employer oper

ated under a general policy of discrimination conceivably13 Cite as: 56 4 U

. S. ____ (2011) Opinion of theCourt 

### could justify a class of both applicants and employees if the discrimination manifested itself in hiring and pro

motion practices in the same general fashion, such as through en tirely subj ective deci sionmaking processes.” Ibid. We thinkthat statement precisely describes respon

dents’ burden in this c a se. The first manner of bridging the gap obviously has no application here; Wal-Mart has no testing procedure or ot her companywide evaluation method that can be charged with bias. The whole pointof permitting discretionary decisi onm a king is to avoid evalu

ating employees under a common s t andard. The second manner of bridging th e gap requi res “signifi

cant proof ” that Wal-Mart “operated under a general policy of discrimination.” That i s entirely absent here. Wal-Mart’s announced policy forbids sex dis crimination, see App. 1 567a–1596a, and as th e District Court recog

nized the company imposes penalties for den i als of equa l employmen topportuni ty, 222 F. R. D., at 1 54. The only evidence of a “general policy of discrimination” respon

dents produced was the testimony of Dr. William Bi elby, their sociological expert. Re lying on “social framework” analysis, Bielby testified that Wal-Mart has a “stron g corporate c u lture,” tha tmakes it “ ‘vulnerable’ ” to “ g ender bias.” Id., at 152. He could not, however, “de t ermine with any specificity how regularly stereotypes play a meaning

ful role inemployme nt decisions at Wal-Mart. At his deposition .

. . Dr. Bielby conc eded that he cou l d not calcu

late whether 0.5 percent or 95 percent of the employment decisions atWal-Mart might be determined by stereotyp ed thinking.” 222 F. R. D. 189, 192 (ND Cal. 2004). T h e parties dispute whether Bielby’s testimony even met the standards for the admission of expert testimony unde r Federal Rule of Civil P r ocedure 702 and our Daubert case, see Daubertv. Me rre l l Dow Pha r maceu tic a ls , Inc. , 50914 WAL-MART S T ORES, INC. v. DUKES Opinion of theCourt 

### U. S. 579 (1993). 8

### The DistrictCourt concluded that Daubert didnot apply t o expert tes t imony at t h e certifica

tion stage of class-action proceedings. 222 F. R. D., at 19 1. We doubt that is so, but ev en if properly considered, Bielby’s testimony does nothing to advance respondents’ case. “[W]hether 0.5 percent or 95 percent of the employ

ment decisions at Wal-Mart might be det e rmined by stereotyped think i ng” is the esse ntial questi o n on which respondents’ theory of commonality depends. If Bielb y admittedly has no answer to th a tquestion, we can safely disregard what he h a s to say. It is worl ds away from “significant proof ” that Wal-Mart“operated under a gen

eral policy of discrimination.” C The only corporate policy that the plaintiff s ’ evidence convincingly establishes is Wal-M a rt’s “policy” of allowin g discr etionby local supervisors over employment matters. On its face, of course, that is just the opposite of a unifor m employmen tpractice that would provide the commonali t y needed for a class action; it is a policy against ha v i ng uniform employment p r actices. Itis also a very common

——————

8 Bielby ’ s c o n c l u sion s inth is c a se h ave elici t ed criticism from the ve ry sc h o lar s onw h ose c o n c lu sion s h er e lies forh i s soc i al-fr a m ew or k an aly

s i s . S e e Mona ha n, Wa lker, & Mitche ll, Co ntextual Evid ence of Gende r Dis crim i na t i on: The As cenda n ce of “Social Framew orks,” 94 Va. L. Rev

. 1715, 174 7 (200 8) (“ [Bielby ’ s] r e sear c hin to c o ndition s an d b e havior at Wal-Mart did no t meet the standards expected of social scientific research into ster eoty p ingand disc r i mination ”); id. , at 174 5, 174 7 (“[A] soc i al fr amewor kn e c e ssar ilyc o n t ain s on lyg e n e r a l state

ments about reliable patterns of rela tion s amon gv a r i abl es . . . an d g o es no furthe r. . . . Dr. Bielby cl aimed to prese n t a social framework, but he testif ied ab out social f a cts specific to W a l-Mart”); id. , at 1 7 4 7–1 74 8 (“Dr . Bielby ’ s r e por tpr ov ides n ov e r i fiable meth od for measu r in gan d testin gan yof th e v a r i ables th at wer ec r u c ial to h i s c o n c lu sion s an d r e flec ts nothingmor ethan Dr . Bielby ’ s ‘ e x p er t judg ment’ about how general stereo typing research applie d t oa l l m a na gers a cros s a ll of Wa lMa rt ’s s t ores na t i onwide for t h e m u lt i-yea rcla s s period” )

.15 Cite as: 56 4 U

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### and presum ptively reas onable way of doing business—one that we ha ve said “sh o uld itself raise no inference of dis

criminatoryconduct,” Wa tsonv. Fort Worth Bank & Tru s t , 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 un der a dispa r ate-impact theory—since “an em ployer’s undisciplined system of subjective decisionma k i ng [can have] precisely the same effects as a system pervaded by i m permissib l e intention a l discrimination.” Id. , at990–991. But the recognition that this type o f 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 device s most managers in any corporation—and surely mostmanagers in a corporatio n that forbids sex discriminatio n—would selec tsex-neutral, performanc e-based criteria for hiring and pro m otion that produc e no actionab le di sp arity at all. Other s may choose to reward vari ousattrib ut esthat produce dispar ate imp a ct

— such as scores on general aptitude tests or educational achievemen ts, see Gri ggs v. Duk ePower Co . , 401 U. S. 424, 431–432 (1971). And still other managers may b e guilty of intentional discrimination that pro d uces a sex based disparity. In s u ch a company, demonstrating th e invalidity of one manager’s use of discretion will do noth

ing to dem o nstrate th e invalidity of another’s. A par t y seeking to certify a nationwide class will b e unable t o show that all the emp l oyees’ Titl e VII claim s will in fa ct depend on the answers to common questions. Res p onde nts have no t i d en tifie da commo n mo de of exe r c i sing discreti on thatperv ad es the entire co mpany—aside from their relianceon Dr. Bielby’ s s o c i a lfr amew ork san a l y sis t h a t we havereje cte d

. Ina com p an y o f Wal

- Ma rt ’s size and geo gra phi c alsco p e, it is qui te u nbelie vable tha ta l l mana ge rs would e x e rci s ethei r dis c retion i na common wa y16 WAL-MART S T ORES, INC. v. DUKES Opinion of theCourt 

### wi thou t so me co mmondi rec tion

. Res p onde nt s at tem p t t o m a k e th at s h ow ing by m e a n s of s t atisti c a l an dan ecd o ta l evide n ce , but thei r e vi d ence falls well sho rt. The statistical evidence consists primarily of regression analyses performed by Dr. Richa r d Drogin, a statistician, and Dr. M a rc Bendick, a labor economist. Drogin con ducted his analysis region-by-regi on, comparing the num

ber of women promoted into management positions with the percentage of wom e n in the available pool of hourly workers. After considering regional and n a tional dat a , Drogin con c luded that“there are statistically significant disparities between men and women at Wal-Mart . .

. [and] these disparities .

. . can be explained on ly by gende r discrimination.” 603 F. 3d, at 604 (internal quotation marks omit ted). Bend ick compar ed wor k -for c e data f r om Wal-Mart and competitive retailers and concluded that Wal-Mart “promotes a lower percentage of women than it s competitors.” Ibid. Even if they are tak e n at face value, these studies are insufficientto establis h that respondents’ theory can be proved on a classwide basis. In Fa l c o n , we held that one named plaintiff ’s experience of discrimination was insuf f i

cient to inf e r that“dis criminatorytreatment is typical of [the employer’s employment] practices.” 457 U. S., at 158. A similar failure of inf e rence arises here. As Judge Ikuta observed in her dissent, “[i]nformation about disparities at the regional and national le vel does not establish the existence of disparities at individual stores, le t alone rais e the inference that a company-w ide policy of discrimination is implemented by dis cretionary decisions at the store a n d district leve l.” 603 F. 3 d , at 637. A regional pay dispari t y, for example, may be attributable to only a small set of Wal-Mart stores, and cannot by itself establish the uni

form, store-by-store disparity upo nwhich th e plaintiffs’ theory of commonality depends. There is another, more fundamental, respect in which17 Cite as: 56 4 U

. S. ____ (2011) Opinion of theCourt 

### respondents’ statistica l proof fa ils

. Even if it established (as it does not) a payor promoti o n 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 comm onality of issue exists. Some managers wi ll claim that the availab ility of women, or qu alified wom e n, or interested women, in thei r stor es’ area does not mirror the nationa l or regiona lstatistics. And almos tall 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 su

pervisors can be the basis of Tit l e VII liability under a disparate-impact theory, the plurality opinio n conditioned that holding on the cor o llary that merely prov ing that th e discretionary system has produced a racia lor sexual disparity is not enough. “[T]he plaintiff m u st begin b y identifying the specific employment pra ctice that is chal

lenged.” Wa tson , 487 U. S., at 994; accord, Wards Co ve Packing Co

. v. Atonio , 490 U. S. 642, 656 (19 89) (approv

ing that statement), superseded by statute on ot her grounds, 42 U. S. C. §2000e–2(k). That is all the m o re necessary when a class of plaintiffs is sought to be certi

fied. Other than the bare existence of delegated discre

tion, respon dents have identifi ed no “specific employment practice”—much less one that ti es all their 1.5 million claims together. Merely showing t hat Wal-Mart’s policy o f discretion has produced an overall sex-based disparity does not suf f ice. Respondents’ anecdotal evidence suffers from the same defects, and in addition is to o weak to raise any inference that all the individual, dis cretionary personnel decisions are discrim i natory. I n Team sters v. United Sta t es , 43 1 U. S. 324 (1977), in addition to substantial statistical evidence of company-wi d e discrimination, the Governmen t (as plaintiff) produced about 40 specific accou n ts of racia l18 WAL-MART S T ORES, INC. v. DUKES Opinion of theCourt 

### discrimination from particular i n dividuals. See id., at 338. That number was significan t because t h e compan y involved had only 6,472 employees, of whom 571 were minorities, id. , at 337, and the class itself consisted of around 334 persons, United S t ates v. T.I.M.E. -D. C., Inc. , 517 F. 2d 299, 308(CA5 1975), overruled on other grounds , Te amsters , su pra . The 4 0 anecdotes thus repre

sented roughly one account for every eight members of the class. Moreover, the Court of Appeals noted that the anecdotes came from individuals “spread thr o ughout” th e company who “for the most part” worked a tt h e company ’s operational centers that empl oyed the largest numbers of the class m e mbers. 51 7 F. 2d, at 315, and n. 30. Here, b y contrast, re spondents filed so me 120 affidavits reporting experiences of discrimination—about 1 for every 12,50 0 class members—relating to only some 235 out of W a lMart’s 3,400 stores. 6 03 F. 3d, at 634 (Ikuta, J., diss ent

ing). More than half of these reports are co ncentrated in only six States (Alabama, California, Florida, Missouri, Texas, and Wisconsin); half of all States have only on e or two anecdo t es; and 14 States h a ve no anecdotes about Wal-Mart’s operations at all. Id. , at 634–63 5, and n. 10. Even if every single one of theseaccounts is true, that would not demonstrate that the entire company “op e r ate[s] under a generalpolicy of discrimination,” Falco n , supra , a t159, n. 15, which is what respondents must show to certify a companywi de class. 9 

### The dissent misunderstands the nature of the foregoing

——————

9 The dissent s a y s that we hav eadopted “ ar u le that a d i sc r i mination c l aim, if ac c o mpan ied bya n ec dote s, mu st su pplyth em inn u m bers proportionate to the si ze of the class.” Post , at 5, n. 4 (G IN SB U R G , J., conc urri ng in pa rta n d diss ent i ng in pa rt). Tha tis not q u it e a ccura t e . A disc r i minat i on c l aimant is fr ee to supplyas few anec dotes as he wishes. But when the c l aim is th at a c o mpan yoper at es u n d era g e n eral policy of discriminatio n , a few anecdotes se lectedfrom literall y millions of em ployment decisions prove no thing at all.19 Cite as: 56 4 U

. S. ____ (2011) Opinion of theCourt 

### analysis. It criticizes our focus on the dissimilarities b e tween the putative cl ass members on the ground tha t we have “b lend[ed]” Rule 23(a)(2) ’ s commonality require

ment with Rule 23(b)(3)’s inquiry into whether common questions “predominate” over individual ones. See post , a t 8–10 (G INSBURG 

### , J., concurring inpart and dissenting in part). Thatis not so. We quite agree that fo r purposes of Rule 23(a)(2) “ ‘[e]ven a single [common] question’ ” will do, post , at 10, n. 9 (quoting Na gareda, The Preexistence Principle a n d the Str u cture of the Class Action, 10 3 Colum. L. Rev. 149, 176, n. 110 (2003)). We consider dissimilarit i es not in order to determine (as Rule 23(b)(3) requires) whether common questions predominate , but i n order to d e termine (as Rule 23(a)(2) requires) wheth e r there is“[e]ven a single [common] question.” And there is not here. Because r e spondents provide no convincing proof of a c o mpanywide discrimin a tory pay and promotion policy, we have concluded that th ey have not established the existence of any common ques t ion. 10 

### In sum, we agree with Chief Ju dge Kozinski that the members of the class: “held a multitude of different jobs, at different levels of Wal-Mart’s hierarch y, for varia b le lengths of time, in 3,400 stores, sprinkled across 5 0 states, with a ka

leidoscope 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 se x and this l a wsuit.” 60 3 F. 3d,

——————

10 Forthis r e aso n , ther e is no for c eto the dissent’ s a tte mp t to di stin

guis h Falconon the groundthat in that case there were “ ‘ noc o mmo n questions of l a w or fact’ betw een the c l aim s of th e leadpl ain t iff an d th e applic an tc l as s ” post , at 9, n

. 7 (qu o tin g Falcon , 457 U. S., at 16 2 (Burger , C. J

. , concu rrin ginpa rta n d dis s ent i ng in pa rt)). Here a l so ther e is nothi n gto unite allof the pl ainti ffs’ c l aims, sin c e (c ontr aryto the dissent’s c o ntention, post , at 9, n

. 7), th e sa me emp l oy men tpr ac tic e s do not “touc h and c o nc er n all member s of the c l ass.”20 WAL-MART S T ORES, INC. v. DUKES Opinion of theCourt 

### at 652 (dissenting opinion). III We also conclude that respondents’ claims for backpa y were improperly certified und er Federal Rule of Civil Procedure 23(b)(2). Our opinion i n Ticor Ti tl e Ins. Co. v. Brown , 511 U. S. 117, 121 (1994) (per curiam )expressed serious doub t about whether claims for monetary relief may be certified under that provis ion. We now hold tha t they may not, at least where (as here) the monetary relief is not incidental to the inj unctive or declaratory relief. A Rule 23(b)(2) allows class treatm e nt when “the party opposing the class has acted or ref u sed to act on grounds that apply generally to the class, so that final injunctive relief orcorrespondingdeclaratory relief is appropriate respecting the class as a whole.” One possibl e reading of this provision is that i tapplies onlyto requests for such injunctive or declarator y relie f and does not authorize th e class certification of monetary clai ms at all. We need not reach that broader question in this case, beca use we thin k that, at a minimum, claims for i ndividualizedrelief (like the backpa yat issue here) do not satisfy the Rule. The k e y to the (b)(2) clas s is “the i n divisible nature of the injunctive or declarat ory re medywarran t ed—the notion that the conduct is such that it can be enjoin ed or declare d unlawful only as to al l of the clas s members or as to no ne of them.” Nagareda, 84 N. Y. U. L. Rev., at 132. Inoth e r words, Rule 23(b)(2) applies only when a single injuncti on or declaratory judgment would provide relief to ea ch member of the class. It does not authorize class certifica

tion when each individual class member would be entitled to a differentinjunctio nor declaratory judgment against the defendant. Similarly, it does not authorize class certi

fication wh en each class member would be entitled to a n21 Cite as: 56 4 U

. S. ____ (2011) Opinion of theCourt 

### individualized award of monetary damages. That interp retation accords with t h e history of the Rule. Because Rule 23 “stems from equity pra c t i ce” that p r e dated its codification, Amchem Products, Inc. v. Windsor , 521 U. S. 591, 613 (19 97), in determining its meaning we have previously look edto the hist orical mode ls on which the Rule was based, Ort iz v. Fib r eboard Cor p . , 527 U. S. 815, 841–8 45 (1999). As we observed in Amchem , “[c]ivil rights cases against pa rties charge d with unla w ful, class

based discrimination are prime examples” of what (b)(2) is meant to capture. 521 U. S., at 614. In particular, th e Rule reflects a series of deci sions 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 examp l es of (b)(2 )’s antecedents did the plaintiffs combine any claim for in dividualized relief with their classwide injunction. See Advisory Committee’s Note, 39 F. R. D. 69, 102 (1966) (citing cases); e.g. , Pottsv. Flax , 313 F. 2d 284, 289, n. 5 (CA5 1963); Brunsonv. Board of Trustees of Univ. of School Dist. No. 1, Clarendo n Cty., 311 F. 2d 107, 10 9 (CA4 1962) (per curi am); Frasi e r v. Board of Trustees of N.C. , 134 F. Supp. 589, 593 (N C 1955) (three-judge court), aff’d, 35 0 U. S. 979 (1956). Permitting the combin ation of individualized and class

wide relief in a (b)(2) class is also inconsistent with the structu re of Rule 23(b). Classes certified under (b)(1) and (b)(2) share the most traditionaljustifications for clas s treatment—that indi vidual adju dications would be impos

sible or un workable, a s in a (b)(1) class, 11 

### or that the relief

——————

11 Ru le 23(b)(1) applie s wh er e separ a te ac ti on s byorag ai n s t in div i d

u a l c l as s me mber s wou l d c r e ate a r i sk of “est abl ish [i n g] in c o mpatible stan dar d s of con d u c t for th e par t yopposin gth e c l ass, ” R u le 23(b)(1)(A) , such as “where the party is obliged bylawto tr eat the member s of th e c l ass a like, ” Am chem Prod ucts, In c. v. Windso r , 521 U. S. 591, 61 4 (199 7), orwh er e in div i du al adju dic a t i on s “as a pr ac tic a lmat t er , wou l d be dispo s itive of the interests of the othermember s not par t ies to the22 WAL-MART S T ORES, INC. v. DUKES Opinion of theCourt 

### sought must perforce a ffect the ent i re class at once, as in a (b)(2) class. For that reason th ese are als o mandatory classes: Th e Rule provides no opportunity for (b)(1) or (b)(2) class members toopt out, a n d does noteven obl i ge the DistrictCourt to afford themnotice of the action. Rule 23(b)(3), bycontrast, is an “adv enturesome innovation” of the 1966 a m endments, Amchem , 521 U. S., at 614 (inter

nal 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, 2 8 U. S. C. App., p. 697 (1994 ed.)). It allows class certifica

tion in a much wider set of circumstances but with greate r procedural protections. Its on ly prerequisites are that “th e questions of law or fact common to class members pre

dominate over any q u estions af fecting only individu al members, and that aclass action is superior to other available methods for fairly an d efficiently adjudica ting the controversy.” Rul e 23(b)(3). And unlike (b)(1) and (b)(2) classes, the (b) ( 3) class is not mand atory; class members are entitled to receive “ t he best notice that is practicable under the circumsta n ces” and to withdra w from the class at their option. See Rule 23(c)(2)(B). Given tha tstruc t ure, we think it clear th at individ

ualized monetary clai ms belong in Rule 23(b)(3). Th e 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 u nnecessary, but becaus e it considers them unnecessary to a (b)(2) class

. When a cl ass seek s a n indivisible injunction benefitting all its memb ers at once, there is no reason to undertake a case-specific inquiry in to

—————— individual ad judications or would su bst a ntial l y imp a ir o rimpede their abil i tyto pr ot ec t theirinter e sts, ” Rule 23(b )(1)(B), such as in “ ‘limi t ed fund’ ca s e s , . . . in w h ichnu merous pers on s ma ke cla i ms a g a i ns t afund insuffic i ent to sati sfyall c l ai ms,” Am chem , supra , at 614.23 Cite as: 56 4 U

. S. ____ (2011) Opinion of theCourt 

### whether class issu es pr edominate or whether class action is a superior method of adjudica ting the di spute. Pre

dominance and superiority are self-evident. But with respect to each class member’s individualized claim for money, that is not s o—which is precisely why (b)(3) re

quires the judge to make findings about predominance an d superiority before allow i ng the clas s. Similarly, (b)(2) doe s not require that class members be given notice and optout rights, presumably because it is thought (rightly or wrongly) that notice has no purpose whenthe class is mandatory, and that depriving people of their right to s u e in this man n er complie s with the Due Process Clause. In the context of aclass action predominantly for money damages we have held that abs ence of notice and opt-out violates dueprocess. S ee Phillips Petroleum Co. v. Shutts , 472 U. S. 797, 812 (19 85). While we have never held that to be so w h ere the monetary claims do not predominate , the serious possibility that it may be so provides an addi

tional reason not to read Rule 23(b)(2) to include the monetary claims here. B Against th at conclusion, respondents argue that thei r claims for backpa y wer e appropria t ely certified as par tof a class under Rule 23(b)(2) because those claims do not “predominate” over th eir requests for injun ctive andd e claratory re lief. They r e ly upon th e Advisory Committee’s statement that Rule 23(b)(2) “does not extend to cases in which the appropriate final relief relates exclusively or predomina n tlyto money damages.” 39 F. R. D., at 102 (emphasis added). Th e negative implication, they argue, is that it d o es extend to cases in which the approp riat e final relief relates onlypartially and nonpredominantly to money damages. Of course it is the Rule itself, not the Advisory C o mmittee’s description of it, that g o verns. And a mere negative inference does not in our view suffice to24 WAL-MART S T ORES, INC. v. DUKES Opinion of theCourt 

### establish a disposition that has no basis in the Rule’s text, and that does obvious violence to the Rule’s structura l features. The mere “predominance” of a proper (b)(2 ) injunctive claim does n o thing to justify elimin ation of Rul e 23(b)(3)’s procedural protections: It neither establishes th e superiority of class adj u dication over individual adjudica

tion nor cures the notice and op t-out problems. We fail to see why the Rule should be read to nullify these protec

tions when ever a plain t iff class, at its option, combines it s monetary claims with a request—even a “predominating request”—f o r an injunction. Respondents’ predominanc e test, moreover, create s perverse incentives for class representatives to place at risk potenti a lly valid c l aims for monetary relief. In thi s case, for example, the named plaintiffs declined to include employees’claims for compensatory dam a ges in their complaint. That strate gy of including only backpay claims made it more likely that mo netar yrelief wo uld not “p r e dominate.” But it also created th e possibility (if the pr e dominance test were correct) that individual class mem

bers’ compensatory-da m ages claims would be precludedby litigation they had n o power to hold themselves apart from. If it were deter m ined, for example, tha ta pa rticul a r class member is not entitled to backpay becau s e her denial of increase dpay or a promotion was not the product of discrimination, that employee might be collaterally es

topped fro mindependently seeking compe n satory da m ages based on that same denial. That possibility under

scores the need for plaintiffs with individual monetary claims to decide for the m selve swh ether to tie their fates to the class representatives’ or go it alone—achoice Rule 23(b)(2) does not ensure that they have. The predominance test would also require the District Court to reevaluate the rosterof class memb ers continu

ally. The Ninth Circ uit recogniz ed the necessity for th is when it concluded that those plaint iffs no longer employed25 Cite as: 56 4 U

. S. ____ (2011) Opinion of theCourt 

### by Wal-Mart lac ksta n ding to seek injuncti ve or decla r a tory relief against its e m ployment practices. The Courtof Appeals’ response to t hat di fficulty, however , was not to eliminate al l former employees from the certified class, but to eliminate only those who had left the company’s employ by t h e date the complaint was filed. That solution has no logical connection to the problem, sin c e those who have left their Wal-Mart jobs sincethe complaint was filed have no more need for prospecti ve relief than those wh o left beforeh and. As a consequence, even though the valid

ity of a (b)(2) class depends on whether “final injunctive relief orcorrespondingdeclaratory relief is appropriate respecting the class asa w h ole ,” Rule 23(b)(2) (emphasis added), about half the members of the class approved b y the Ninth Circuit have no claim f o r injunctive or declara

tory relief at all. Of course, the alternative (and logical) solution of excising plaintiffs from the class as they leave their employment mayhave struck the Court of Appeals as wasteful of the District Court’s time. Which indeed i t is, since if a backpayaction were properlycertified for class treatment under (b)(3) , the ability to litigate a plain

tiff ’s backp ay claim as part of the class would not turn on the irrelevant question whether she is stillemployed at Wal-Mart. What follows from th is, however, is not tha t some arbitrary limitation on class membership should be imposed but thatthe b a ckpa y claims should not be certi

fied under Rule 23(b)(2) at all. Finally, respondents argue tha ttheir backpay clai m s are appropriate for a (b )(2) class action because a backpay award is eq uitable in nature. The latter may be true, but it is irrelevant. The Rule does not speak of “equitable” remedies generally but of inju nctions and declarato r y judgments. As Title VII it self makes pe llucidly clear, backpa yis neither. See 42 U. S. C. §2000e–5(g)(2)(B)(i) and (ii) (distinguishing between declaratory and injunc

tive relief and the payment of “backpa y ,” s ee §2000 e–26 WAL-MART S T ORES, INC. v. DUKES Opinion of theCourt 

### 5(g)(2)(A)). C In Allisonv. 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 thatis “inciden

tal to requested injunctive or declaratory relief,” which it defined as “damages that fl ow directly from liability to the class as a wholeonthe claims forming the basis of th e injunctive o rdeclarator y relief.” Inthat court ’ s view, suc h “incidental damage should not req u ire additional hearings to resolve t h e disparate merits of each individual’s case; it should neit her introduce new substantial legal or factual issues, n o r entail comp lex individualized determinations.” Ibid. We need not decide in this case whether there are any forms of “incident a l” monetary relief tha tare consis

tent with the interpr e tation of Rule 23(b)(2) we have announced and that co mply with the Due Pro c ess Clause. Respondents do not ar gue that they can satis f y this stan

dard, and i nany event they cannot. Contrar yto the Ninth Circuit’s view, Wal-Mart is enti

tled to individualized determinations of each employee’s eligibility for backpay. Title VII in cludes a detailed reme

dial scheme. If a plaintiff prevails in showing tha t an employer has discriminated again s t him in vi olation of the statute, th e court “m ay enjo in the respondent from en

gaging in s u ch unlawful employment practi ce, and order such affirmative action as may be appropriate , [including] reinstatement or hirin gof emplo y ees, with or without backpa y. . . or any o t her equitable relief a s the court deems appropriate.” §2000e–5(g)(1). But if t h e employer can show that it too kan adverse employment action against an employee for any reason other than discrimina

tion, the court cannot order the “hiring, reinstatement, o r promotion o f an individual as an e m ployee, orthe payment to him of an y backpay.” §2000e–5(g)(2)(A).27 Cite as: 56 4 U

. S. ____ (2011) Opinion of theCourt 

### We have established a procedure for trying p a ttern-or

practice cas e s that gives effe ct to these statutory require

ments. When the plaintiff seeks individual relief such as reinstatement or backpay after establishing apattern or practice of discrimination, “adistrict cour t must usually conduct ad ditional proceedings .

. . to determine the scope of individual relief.” Teamsters , 43 1 U. S., at 361. At this phase, the burden of p r oof will sh i f t to the company, but it will have the right to raise anyindividual affirmative defenses it may have, and to “de m onstrate that the indi

vidual appl icant was denied an employmen topportuni ty for lawful reasons.” Id

. , at 362. The Court of Appeals believed that it was possible to replace such proceedings with Tri a l by Formula. A sample set of the class memb ers would be sel e cted, as to whom liability for sex discrimi nation and the backpay owing as a result would be determined indep o sitions sup e rvised 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) val i d claims thus derived would be m u ltiplied by the av erage backpay award in the sample set to arrive at the entire class recovery—w ithout further indi vidualized proceedings. 603 F. 3d, at 625–627. We disapprove that novel project. Because the Rul e s Enabling Act forbids interpreti ng Rule 23 to “abridge, enlarge ormodify a n y substantive right,” 28 U. S. C. §2072(b); see Ortiz , 5 27 U. S., at 845, a class cannot be certified on the premise that Wal-Mart will not be entitl ed to litigate its statutory defenses to individual claims. An d because the necessity of thatlitigation will prevent back

pay from being “incidental” to the classwide injunction, respondents’ class could not be certified even assuming, arguendo , that “incid ental” awarded to a 23(b)(2) class. monetary relief can be
* * * The judgment of the Court of Appe als is Reversed._________________

_________________ 1 Cite as: 56 4 U

. S. ____ (2011) Opinion of G IN SB U R G , J. 

# SUPREME CO URT O FTHE UNI TED STATES
No. 10–2 77 

### WAL-MART ST ORES, INC., PETI TIONER v. BETTY DU KES ET AL


### . ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEAL S FOR THE NINT H CIRCUIT [Ju n e20, 2011 ] 

### J USTICE 

### G INSBU R G 

### , with whom J USTIC E 

### B REYE R 

### , J USTICE 

### S O T OMAYOR 

### , a n d J USTICE 

### K AGAN

### join, concurrin g in part and dissenting in part. The class in this case, I agree with the Court, s h ould not have been certified under Federal Rule of Civil Procedure 23(b)(2). The plaintiffs, alleging discrimination in viola

tion of Title VII, 42 U. S. C. §2000 e et seq. , seekmonetary relief that is not merely incidental to any injunctive or declaratory relief that might be available. See ante , at 2 0– 27. A putative class of this type may be certifiable under Rule 23 (b)(3 ) , if the plai ntiffs sho w tha tco mmo n class q u es tions “predominate” over issues affecting individuals— e.g. , qualification for, and the am ount of, backpay or co m pensatory damages—and that aclass action is “superior” to other modes of adjudication. Whether t h e class the plaintiffs describe meets th e specific requirements of Rule 23(b)(3) is not before th e Court, and I would reserve t hat matter for consideration and decision on remand. 1 

### The Court, however, disqualifies the class at the starting gate, holding that the plaintiff s cannot cros s the “com m onality” line set by Rule 23(a)(2).

——————

1 Th e plain t iffs r e qu ested Ru le 23(b)(3) c e r t ific ationas analter n ativ e, should their request for (b)(2) certific atio n fail. Plaintiffs’ Motion fo r Clas s Cer t ific a t ioninNo. 3:01–c v–02 252 –C RB (ND Cal.), Doc

. 99, p. 47.2 WAL-MART S T ORES, INC. v. DUKES Opinion of G IN SB U R G , J. 

### In so ruling, the Cou rt imports into the Rule 23(a) de

termination concerns properly addressed in a Rule 23(b)( 3 ) assessment. I A Rule 23(a)(2) establish e s a preliminary requirement fo r maintainin g a class action: “[T]here are questions of law o r fact common to the class.” 2 

### The Rule “does not require that all questions of la w or fact raised in the litigation be common,” 1 H

. Newberg & A. Co nte, 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 satisf y the commonality re

quirement,” Nagareda, The Preexistence Principle and the Stru cture of the Class Action, 103 Colum. L. Rev. 149, 176, n. 110 (200 3). See Advisory Committee’s 1937 Notes on Fed. Rule Civ. Pro c . 23, 28 U. S. C. App., p. 138 (citin g with approval cases in which “there was only a question of law or fact common to” the class members). A “question” is ordinarily und erstood to be “[a] subject or point open to controv e rsy. ” American Heri t a ge Diction

ary 1483 (3 d ed. 1992). See also Black’s La w Dictionary 1366 (9th ed. 2009) (defining “question of fact” as “[a ] disputed issue to be res o lved . . . [a t] 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 di spute, eith er

——————

2 Rule 23(a) lis ts thr ee other thr e sh old requ irements for class-action certification: “(1) the class is so num erous that joinder of all members i s impr ac tic ab l e” ; “(3) the c l aims orde fenses of the rep r esentative parti e s are typical of the claims or d e fenses of the class; and (4) the representa

tive partie s wi ll fairly and a d equately protect the interest s of th e c l a ss. ” The nume r osity requireme n t is clea rly m e ta n d Wa l-Ma rtdoes not contend otherwise. As the Court does not r e ac h the ty pic a lity and adequacy requirements, ante , at 9, n. 5, I will no t discuss them either, but will sim p l yrecord my agreement with the DistrictCourt’s resol u tion of those issues.3 Cite as: 56 4 U

. S. ____ (2011) Opinion of G IN SB U R G , J. 

### of fact or of law, the re solution of which will advance the determination of the class member s’ claims. 3 

### B The Distric tCour t, rec o gnizing th at “one sig n ificant is

sue common to the cla ss may be sufficient to warran tcer tification,” 222 F. R. D. 137, 145 (ND Cal. 2 004), found that the plaintiffs easily met that test. Absent an error of law or an a buse of discretion, an appellate tribunal has n o warran tto upset the District Court’s finding o f commonal

ity. See Califanov. Yamasaki , 4 42 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 cer t ified a class of “[a]ll women em

ployed at any Wal-Mart domestic retail store at any time since December 26, 1998.” 222 F. R. D., at 141–143 (in

ternal quotation marks omitted). The named plaintiffs, led by Betty Duk e s, propose to litigate, on behalf of the class, allegations that Wal-Mart d i scriminates on the basis of gender in pay and promotions. They allege that the company “[r]eli[es] on gender stereotypes in mak i ng em ployment decisions su ch as .

. . promotion[s] [and] pay.” App. 55a. Wal-Mart permits those prejudices to infect personnel d e cisions, the plaintiffs contend, by leaving pa y and promotions in the hands of “a nearly all male mana ge rial workfo rce” using “arbitrar y and subjective criteria.” Ibid

. Further alleged barriers to the advancement of female emp l oyees inclu d e the company’s requirement, “as a conditionof promotion to man a gement jobs, that em

-

——————

3 Th e Cou r t su g g e sts Ru le 2 3 ( a)(2) mu st me an mor ethan it s a y s . See ante , at 8–10. If th e wor d“qu e stion s ” wer etakenliter all y , th e major i ty asser t s, pl ain t iffs c o u l d pa ss th e Ru le 2 3 (a)(2) bar by“[r] ec itin g. . . questions” like “Do al l of us p l aintiffs indeed work for Wa l-Ma rt ?” Ante , a t9

. S e ns ib ly rea d , howe ver, the wo rd“q ues t ions ” mea n s dis p uted issues, not anyutter a nc e c r afted in th e gr amm a tic a l for mof a qu estio n .4 WAL-MART S T ORES, INC. v. DUKES Opinion of G IN SB U R G , J. 

### ployees be willing to relocate.” Id ., at 56a. Absent in

struction otherwise, there is aris kthat managers will act on the familiar assum p tion that women, bec ause of their services to husband and childre n, are less mobile than men. See Dept. of Labor, Federal Glass Ceiling Commis

sion, Good for Busines s : Mak i ng Full Use of the Nation’s Human Ca pital 151 (1995). Women fill 70 percent of the hourly jobs in the retailer’s stores but make up only “33 percent of management em

ployees.” 222 F. R. D., at 146. “[T]he higher one looks in the organiz a tion the lower the per c entage of women.” Id ., at 155. The plaintiffs’ “largely uncontested descriptive statistics” a l so show that women working in th e company’s stores “are paid less than men in every regio n” and “tha t the salary gap widens over time even for me n and women hired into the same jobs at the same time.” Ibid .; cf. Ledbetter v. Goodyear Tire & Rub b er Co. , 550 U. S. 618, 643 (2007) (G INSBURG 

### , J., dissenting). The Distric tCourtidentified “sys tems for .

. . promotin g in-store employees” that were “su fficiently similar across regions and stores” to c o nclude that “the man n er in whic h these systems affect the class raises issues t hat are co m mon to all class members.” 222 F. R. D., a t149. Th e selection of employees for promotion to in-store manage

ment “is fa irly chara c terized as a ‘tap on the shoulder’ process,” in which ma nagers have discretion about whose shoulders to tap. Id. , at 148. Va cancies are not regularly posted; from among those emplo y ees satisfying minimu m qualifications, managers choose whom to promote on the basis of thei r own subjective impre ssions. Ibid

. Wal-Mart’s compensation policies also operate uniformly across stores, the District Court fou n d. The retailer leaves open a $2 band for every position’s hourly pa y rate. Wa lMart pro vides no standards or c r i teria for setting wa ges within that band, and thus does nothing to counter uncon

scious bias on the part of supervisors. See id ., at 146–147.5 Cite as: 56 4 U

. S. ____ (2011) Opinion of G IN SB U R G , J. 

### Wal-Mart’s supervisors do not make their discretion

ary decisions in a vacuum. The District Court reviewe d means Wal-Mart used t o maintain a “carefullyconstruc t ed

. . . corporate culture,” such as frequent meetings to reinforce the common way of th inking, regular transfers of managers between stores to ens u re uniformity throu gh

out the company, monitoring of st ores “on a close and con

stant basis,” and “Wa l -Mart TV, ” “broadcas [ t] .

. . into all stores.” Id ., at 151–153 (internal quotation marks omitted). The plainti ffs’ evidence, including class mem b ers’ tales of their own experiences, 4

### suggests that gender bias suf

fused Wal- Mart’s company culture. Among illustration s, senior man a gement often refe r to female associates as “little Janie Qs.” Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB ( N D Cal.), Doc. 99, p. 13 (in

ternal quotation marks omitted). One man a ger told a n employee t hat “[m]en are here to mak e a career and women aren’t.” 222 F. R. D., at 166 (internal quotation marks omitted). A committee of female Wal-Mart execu

tives concluded that “[s ] tereot ypes limit the op portunities offered to women.” Plaintiffs ’ Motion for Class Certifica

tion in No. 3:01–cv–02252–CRB ( N D Cal.), Doc. 99, at 1 6 (internal quotation marks omitted). Finally, the plaintiffs p r esented anexpert’s appraisal to show that the pay an d promotions disparities at Wal-Mart “can be explained onlyby gender discrimination and no t by .

. . neu tral variables.” 222 F

. R. D., at 155. Using regression analyses, their expert, Richard Drogin, co n -

——————

4 The major i ty pur p or ts to d e r iv efr om Te am sters v. United States , 431 U. S. 324 (197 7), a r u le th at a di sc r i m i n a tionc l aim, if ac c o mpan ied byan ec dotes, mu st su pplyt h em innu mbers proportionate to the size of th e c l ass. Ante , at 17– 18. Team sters , the Court acknowledges, see ante , at 18, n

. 9, in str u c t s t h at s t at ist i c a lev iden c ealon e may su ffic e , 431 U. S

. , at 339; th a tdec i sionc a nh a r d lybe said to establi s ha n u m e rica l floor b e fore a n ecdot a l evidence ca n b et a ken int oa ccount
.6 WAL-MART S T ORES, INC. v. DUKES Opinion of G IN SB U R G , J. 

### trolled for factors including, inter alia , job performance, length of time with the company, and the store where an employee work ed. Id ., at 159. 5

### T h e results, the District Court found, were sufficient to raise an “inference of dis

crimination.” Id ., at 155–160. C The District Court’s identification of a common question, whether W a l-Mart’s pay and promotions pol i cies gave rise to unlawful discrimination, was hardly infirm. The prac

tice of delegating to s u pervis ors large discre tion to make personnel d e cisions, un controlled by formal standards, has long been known to have the potential to pr oduce dispa

rate effects. Managers , like all h u mankind, may be prey to biases of which they are una ware. 6

### T h er i s ko f d i s crimination is heightened when those mana gers are pre dominantly of one s e x, and are steeped ina corporate culture that perpetuates gender stereotypes. The plaintiffs’ allegations resemb le those in one of the

——————

5 Th e Cou r t asser t s th at D r o ginsh ow ed o n ly average di fferences at the “r egional and national l e v e l” be tween male and fe male emp l oyees. Ante , at 16 (in t er n a l qu otat i o nmar k s om i tted). Infac t , h i s r e gr ession analyses showed there weredisp arities withinstores. The majority’s contention to the contrary reflects only an arcanedisagreement about sta t is tic a l me t h od—which the Distr i c tCour t r e solv ed in the plaintiff s ’ fav o r . 222 F. R. D. 137, 15 7 (ND C a l. 2 0 04). Appell at e r e v i ew is n o occa s i on to dis t urb atrial court’s ha ndlin g of fa ctua l dis p utes of th is order.

6 An example vividly illustrat e s how subject ive decisionma king can be avehicle for dis crim i na t i on . Perfo r ming in s y mphony orches tra s wa s long a male p r eserve. Goldin and Rous e, Orches t r a t ing Im pa rt ia lit y : The Impact of “Bl i nd” Audi tions onFema le Mus i cia n s , 9 0 Am

. Econ. Rev

. 715, 71 5 –71 6 (20 00). Inth e 1970’ s or c h estr as beg a nh i r i n gmu s i

c i ans thr o ugh auditions opento all c o mer s . Id ., at 716. Rev i ewer s wer e to judge appli c ants solely o nthei r musical ab ilit ies, yet subconscious bia s led some r e v i ewer s to di sfav orwomen. Orc h estr as that per m itte d r e v i ewer s to s ee the app lic a n ts hir e d farf e werfemale music i ans tha n or c h estr as th a tc o n d u c ted bl in d au dition s, inwh ic hc a ndidate s pl ay ed behind opaque screens. Id ., at 73 8.7 Cite as: 56 4 U

. S. ____ (2011) Opinion of G IN SB U R G , J. 

### prototypicalcases in t h is area, Lei s n e r v. N e w York Te l. Co. , 358 F. Supp. 359, 364–365 (SDNY 1973). Indecidin g on promotions, supervisors in thatcase were to startwit h objective measures; but ultimate ly, they wer e to “look at the individual as a tot a l individu al.” Id ., at 365 (internal quotation marks omitted). The final question they were to ask and an swer: “Is th is 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 t o their own. We have held that “dis cretionary employment practices ” can give rise to Title VII claims, not only when such prac

tices are m o tivated by discrimi natory intent b u t also whe n they produce discriminatory results. See Watsonv. Fort W

o r t h Ba nk& T r u s t , 487 U. S. 9 77, 988, 991 (1988). Bu t see ante , a t17 ( “ [P]ro ving tha t[ a] discretionary s y ste m has produced a .

. . dis p arity is no t enough .” )

. In Watson , as here, an employer had given its managers large author

ity over promotions. An employee sued the bank un der Title VII, alleging thatthe “discre tionary pro m otion sys

tem” caused a discriminatory effect based on race. 487 U. S., at 984 (internal quotationmarks omitted). Four different supervisors had declined, on separate occasions, to promote the employee. Id. , at 982. Their reasons were subjective and unkno wn. The e m ployer, we noted “h ad not developed precise and formal criteria fo r evaluatin g candidates” ; “[i]t relied instead on the subjective judgmen t of supervisors.” Ibid. Aware of “the problem of subconscious stereotypes an d prejudices,” we held that the e m ployer’s “undisciplined system of subjective de cisionmaking” was an “employment practic[e]” that “may be analyzed under th e disparate impact app r oach.” Id ., at 990–99 1. See also Wards Cov e Packing Co. v. At on i o , 490 U. S. 6 42, 657 (1989) (recogni z ing “the use of ‘subjective decision making’ ” as an “em

-8 WAL-MART S T ORES, INC. v. DUKES Opinion of G IN SB U R G , J. 

### ployment practic[e]” su bject to disp arate-impac tattac k). The plaintiffs’ allegations state claims of gender dis

crimination in the form of biased decisionmaking in both pay and promotions. The evidence reviewed by the Dis

trict Court adequately demons trated that resolving those claims would necessit a te examination of pa rticular poli

cies and practices alleged to affect, adversely and globally, women em ployed at Wal-Mart’s stores. Rule 23(a)( 2 ), setting a n e cessary bu t not a sufficient criteri on for class

action certif i cation, demands nothing further. II A The Court gives no credence to the key dispute common to the cla ss: whet her W a l-Ma rt ’s di sc retio n a ry pa y a n d p r o motion policies are dis cri mina to ry . See an te , at 9 (“Re citin g” que s tions li ke “I s [givin g m ana gers dis cre tion o v e r pay] an u n lawful employment practice?” “i s not sufficient to obtain class certification.” ). “What matters,” t h e Court asser t s, “is not t h e raising of common ‘questions,’ ” but whether there are “[d]issimilarities within the pr o posed class” that“have the potential to imped e the gener a tion of common answers.” An te , at 9–10 (quoting Na

gareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 132 (2009); some intern al quotation marks omit ted). The Courtblends Rule 23(a)(2)’s threshold criterion with the more demanding criteri a of Rule 23(b)(3), and thereby elevates the (a)(2) inquiry so that it is no long er “easily satisfied,” 5 J. Moore et al ., Moore’s Federal Prac

tice §23.23[ 2], p. 23–72 (3d ed. 201 1). 7 

### Rule 23(b)(3) certi

-

——————

7 The Court places considerable weight on General Telephone Co. of Southw estv. Falcon , 457 U. S. 147 (19 82)

. Ant e , at 12– 13. Th at c a se has little rele vance to the question befor ethe Court today. The lead plaintiff in Fa lconalleged discrimination ev idenced by the company’s failure to pro m ote him and other Mexi can-American employees and9 Cite as: 56 4 U

. S. ____ (2011) Opinion of G IN SB U R G , J. 

### fication requires, in addition to the four 23(a) findings, de

terminations that “qu e stions of law or fac tcommon to class memb ers predominate over any questions affecting only individual members” and tha t“a class action is supe

rior to oth e r available methods for .

. . adj u dicating t h e controversy
. ” 8 

### The Court’s emphasi s on diffe rences between class members mimics the Rule 23(b) (3) inquiry into whether common qu estions “predominate” over individual issue s . And by as king whether the individual differen c es “impede ” common adjudication, ante , at 10 (internal quotation marks omitted), the Court duplic ates 23(b)(3)’s question whether “aclass action is superior” to other modes of adjudicatio n . Indeed, Professor Nagareda, whose “dissi mi

-

—————— fa ilure t ohire Mexica n-Am erica na pplica n t s . There were “ noc o mmon questions of law or fact” be tween the claims of the lead plaintiff and the applic an t c l a s s . 457 U. S., at 162 (Bu r g e r , C. J., c o n c u rrin ginpar tand dissenting in part) (emphasis added)

. The plaintiff-employee allege d that the defendant-employ erhad disc r i minated ag ainst him intention

a lly. The a pplica n tcla s s claim s , b ycont ra s t , were “ a dva n ced undert h e ‘adverse impact’ theory,” ibid ., a ppropria t e for fa ciallyneut ra l pra c t i ces . “ [ T]he only com m o n a lit y [wa] s t h a tres p ondent is aMexica nAmerican and he seeks to represen tacla s s of Mexica n-Am erica n s . ” Ibid

. Her ethe same pr ac ti c e s touc h and c o nc er n all member s of t h e c l ass.

8 “A c l ass ac tio nmaybe maintained if Rule 23(a) is s a ti s f ied and if: “(1) prosecuting separate actions byorag a i nst indiv i dua lc l ass mem b e rs would cre a t e aris kof .

. . inco ns is tent or vary ing adj u dications

. . . [or] adjudic a ti ons with r e sp ec t to indiv i d u al c l as s me mber s that, a s a practical m a t t er, would be dispo s it ive o f the interests of the othe r members . . . ;

“(2) the par t yopposingthe c l as s ha s ac ted orr e fuse d to ac t on gr ounds that applyg e ner a llyto the c l ass, so that fina l i n junc tiv er e lief

. . . is appropriate res p ectingthe class as a whole; o r

“(3) the c o ur t finds that the questions of la w orfac tc o mmon to c l as s members pre d ominate ove rany ques tions affecting only individual member s, andthat a c l a ss a c tion is superior to other available me thod s for fa irly a n d efficient l y a d j u dica t i ng t h e cont rove rs y.” Fed. Rule Civ. Pr oc . 23(b) (par agr a phbr eaks added).10 WAL-MART S T ORES, INC. v. DUKES Opinion of G IN SB U R G , J. 

### larities” inquiry the Co urt endo rses, developed his position in the cont ext of Rule23(b)(3). See 84 N. Y. U. L. Rev., at 131 (Ru l e 23(b)(3) requires “some decisive degree of similarity across the proposedclass” becaus e it “speaks of common‘questions’ that ‘p redominate’ over individual ones”). 9

### “The Rule 23(b)(3) pre d ominance inquiry” i s meant to “tes[t] whether proposed classes are sufficiently cohesive to warrantadjudica ti on by rep r esentation.” Amchem Products, In c. v. Windsor , 521 U. S. 591, 623 (1997). If courts must conduct a“dissimilarit i es” analysis at the Rul e 23(a)(2) stage, no mission remains for Rul e 23(b)(3). Because Rule 23(a) is also a p r erequisite for Rule 23(b)(1) and Rule 23(b)(2) classes, the Court’s “dissimilari

ties” position is far reachi ng. 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 , 5 21 U. S., at 623, n. 19 (Rule 23(b)(1)(B) “doe s not have a predominance requirement”); Ya masaki , 4 42 U. S., at 70 1 (Rule 23(b)(2) action in which th e Court noted that “[i]t is unlikely that differences in the factual back

ground of e a ch claim will affect the outcome of the legal issue”). Fo r example, in Franksv. Bowman Tran sp. 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 “q ualificat ion [ s] and performance” of individual class members might va ry. Id ., a t7 72 (internal quotation marks omitted). “Generalizations concernin g such individually applicable evidence,” we cautioned, “cannot serve as a jus t ification for the denia lof [injunc

-

——————

9 Cf. su pra , at 2 (Ru l e 23(a) c o mmon a litypr er equ i site sati sfied by “[e]v e n a single question .

. . c o mmon to the member s of the c l as s ” (q uoting Na ga reda , The P r e e xis t ence Principle and the Structure of th e Clas s Ac tion , 103 Colu m. L. Rev

. 149, 176, n

. 110 (200 3)).11 Cite as: 56 4 U

. S. ____ (2011) Opinion of G IN SB U R G , J. 

### tive] relief to the entire class.” Ibid

. B The “dissimilarities” approach leads the Court to trai n its attention on what distinguishes individual class mem

bers, rather than on what unites them. Given the lack of standards for pay and promotions, the m a jority says, “demonstrating the in validity of one manager’s use o f discretion will do nothing to demonstrate the invalidity of another’s.” Ante , at 15. Wal-Mart’s delegation of discretion over pay and promo

tions is a policy uniform througho ut all store s . The very nature of discretion is that people will exerci se it invari

ous ways. A system of delegated discretion, Wa tsonheld, is a practice actionable under Tit l e VII when it produces discriminatory outcom e s. 487 U. S., at 990–991; see su pra , at 7–8. A findin g that Wal-Mart’s pay and promo

tions practi ces in fact violate the law would be the first step in the usual orderof proof f o r plaintiffs s eek ing indi

vidual rem e dies for company-wide discrimination. Te a m ste rsv. Uni t ed S t a t es , 431 U. S. 3 24, 359 (1977); see Albe

marle P ape r Co. v. Moody , 422 U. S. 405, 415–423 (1975). That each individual employee’s u n ique circumstances will ultimately determine whether she is entitled to backpay or damages, §2000e–5(g)(2)(A) (barri ng backpay if a plaintiff “was refused .

. . advancement .

. . for any reason other than discri mination”), should not factor in to the Rule 23(a)(2) determination. * * * The Court errs in importinga “d issimilarities” notion suited to R u le 23(b)(3) into the Rule 23(a) commonality inquiry. I therefore cannot join Part II of the Court’s opinion.