The University of Colorado at Boulder Law School

The gender discrimination class action Dukes v. Wal-Mart, whose certification was recently affirmed in the Ninth Circuit, presents a large-scale challenge to the company’s excessive reliance on subjective judgment in employment decision-making. It is one in a growing number of similar suits, all of which are fundamentally attacks on the continued operation of entrenched gender stereotypes in the allocation of workplace opportunities. The breadth of this aim is one of the strengths of these suits, but it also raises a significant question: because this kind of litigation targets a broad social phenomenon, is it reasonably possible to distinguish employers who are part of the problem from those who are not? This Article argues that, given the real possibility of judicial and public resistance to these suits, there is a serious need for some articulation of what employer practices would be sufficient to demonstrate legal compliance sufficient to forestall litigation like Dukes. Past litigation, the evaluations of human resources experts, and Supreme Court interpretations of the requirements of federal antidiscrimination law all provide some guidance as to employer policies that could satisfy these compliance efforts. But a growing body of empirical research suggests that workplace programs designed for compliance do not necessarily improve circumstances for women and minorities. Any discussion of compliance must grapple with this problem. This Article argues that employers, and those offering them guidance, must develop strategies for compliance that will in fact remove barriers to equality, but that litigation like Dukes may not be appropriate to target employers who have made substantial compliance efforts, even if those efforts have not eliminated inequalities.

This article considers the landmark gender discrimination class action, Dukes v. Wal-Mart Stores, both as a prototype of an emerging litigation strategy and also as a case that is entirely unique. As part of a growing trend of gender discrimination class claims, Dukes has the potential to push the boundaries of the law to confront the pervasive, tenacious stereotypes that continue to limit women’s workplace opportunities. The plaintiffs’ arguments – both the narrative of discrimination their evidence set out and the legal strategies they chose – are strikingly similar to claims that have been made in many class action lawsuits over the past decade. It is a strategy for litigation that challenges both the company-wide policy to delegate pay and promotion decisionmaking authority and the individual subjective decisions of managers throughout the country. The first challenge—to Wal-Mart’s centralized policy choices—puts this case squarely within doctrinal debates about Federal Rule of Civil Procedure 23 that have dominated class litigation for close to a decade. The second aspect of this litigation—its assault on the subjective decisions made as a consequence of Wal-Mart’s delegation—raises a question that has lurked behind Title VII litigation for years: What responsibility should employers take for gender stereotypes and biases that pervade United States culture when the effects of those cultural norms are felt at work? By challenging the aggregate consequences of multiple individual decisions, this article argues, this type of gender discrimination class litigation takes an extremely important step in efforts to root out gender inequalities at work. Finally, the piece considers the ways in which Dukes v. Wal-Mart, although it is part of a trend of similar litigation, has unique importance because the defendant is Wal-Mart, and in particular because of Wal-Mart’s extraordinary market power and its consequent influence on other employers’ practices, and the company’s remarkably strong corporate culture.

Unconscious bias is widely recognized as the most pervasive barrier to equal employment opportunity for minorities and women in the workplace today and yet many argue that federal laws prohibiting discrimination do not prohibit unconscious discrimination. This article argues that the law does in fact provide some redress for unconscious discrimination. Title VII may not be a perfect method for attacking unconscious bias, but it is a mistake to assume that it is without potential. The article challenges the assumption commonly held by judges that a finding of discrimination must be preceded by the belief that an employer is lying about its reasons for a particular decision. The Supreme Court's recent decision in Desert Palace v. Costa, 539 U.S. 90 (2004) eliminates any argument that employer mendacity is a prerequisite for plaintiff success under Title VII. By recognizing that an employer may honestly believe the reasons it offers for a decision, but may nonetheless have been motivated by racial or gender bias in making the decision, the law opens up significant potential for challenging instances of unconscious discrimination. Further, the article demonstrates that plaintiffs can - and do - challenge unconscious bias both in individual claims and in class litigation through arguments that an employer's decisionmaking processes are excessively subjective.