Much will be said about the decision handed down today by the U.S. Supreme Court in the case of Wallmart Stores v. Dukes (Opinion). The main point, I think, is that most employers can be rest assured that they will not face a class action lawsuit under employment discrimination causes of action. The Supreme Court, among other things, ruled that there was no evidence that the Employer “operated under a general policy of discrimination;” because Dukes failed to identify a common mode of local manager’s exercise of discretion that would spread through the whole company. More importantly, the Supreme Court held that the potential class lacked “commonality” because, in resolving each of their individual cases, the Court would have to analyze “… literally millions of employment decisions at once.” As stated in the majority opinion, “… [w]ithout some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.”
For the U.S. Supreme Court, what matters is not raising common questions, “… but rather the capacity of a classwide proceeding to generate common answers to drive the resolution of the litigation.”