Weathering Wal-Mart

ABSTRACT In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2531 (2011), the Supreme Court held that a proposed class of over a million women that had alleged pay and promotion discrimination against the nation's largest retailer could not be certified. According to the Court, the plaintiffs had failed to establish a common thread in the case sufficient to tie their claims together. The academic response to Wal-Mart was immediate and harsh: the decision will serve as the death knell for mass employment litigation, undermining the workplace protections provided by Title VII of the Civil Rights Act of 1964 (Title VII). This Article embraces the view offered by scholars to date and does not engage the debate over the extent to which Wal-Mart will eviscerate the employment rights of workers. Instead, this Article attempts to find a solution to the problem created by Wal-Mart. The academic literature has yet to thoroughly explore possible ways to minimize the impact of the Court's decision, and this Article seeks to fill that void in the scholarship. Though the case undoubtedly weakens the ability of Title VII plaintiffs to pursue class action claims, the decision still leaves substantial room for creative approaches to systemic discrimination. This Article offers three such solutions to the problem created by Wal-Mart: the governmental approach, the procedural response, and revised relief. This Article critiques each approach, and explains how they are useful in pursuing workplace cases that involve company-wide discrimination. This Article also situates these proposals in the context of the existing literature. The thesis of this Article is simple. Taking at face value the argument of scholars that Wal-Mart has created a gaping hole for victims of systemic discrimination, this Article asks what tools are still available for plaintiffs to help fill that hole. Wal-Mart signals a sea change for mass employment litigation. The challenge now will be to find imaginative ways of pursuing systemic discrimination claims. This Article takes on that challenge. "The Sky Is Falling!" --Henny Penny, Chicken Little (1) INTRODUCTION In the wake of the Supreme Court's controversial decision in Wal-Mart. Stores, Inc. v. Dukes, (2) there has been an outpouring of critics decrying the case as one that will completely eviscerate the employment protections of workers across the country. (3) In Wal-Mart, the Supreme Court held that a class of over a million women that had alleged pay and promotion discrimination against the nation's largest retailer could not be certified under the Federal Rules of Civil Procedure. (4) The Court concluded that the claims of the purported class lacked the commonality necessary for certification. (5) The academic response to Wal-Mart was swift, and scholars immediately denounced the decision as one that undermines the rights of workplace discrimination victims. (6) This assessment of Wal-Mart is correct, as the class action tool has been critical to the enforcement of employment protections for thousands of workers subjected to discrimination. (7) This Article thus embraces the early literature that has criticized the case as problematic for civil rights litigants. The Court's decision undoubtedly left a void for plaintiffs attempting to vindicate their rights in the face of company-wide discrimination--thus creating the Wal-Mart gap. While accurately identifying the problem, the academic scholarship has yet to thoroughly explore possible solutions to the Wal-Mart gap. This Article attempts to fill that void in the literature and proposes several ways for plaintiffs to minimize the negative impact of this decision. Wal-Mart is a problem for civil rights litigants, but it is far from a disaster. This paper takes at face value the argument of many scholars that Wal-Mart, has weakened the protections for Title VII victims. (8) Thus, this Article does not engage the ongoing debate over whether--and to what extent--Wal-Mart will undercut employee rights. …