A diamond in the rough: trans-substantivity of the Federal Rules of Civil Procedure and its detrimental impact on civil rights.

• Author: Malveaux, Suzette
• Position: Continuation of II. Procedure Disproportionately Harms Employment Discrimination and Civil Rights Claims B. Class Actions through Conclusion, with footnotes, p. 490-526

1. Heightened Commonality (207)

   In one of the largest private-employer civil rights class actions in American history, Wal-Mart Stores, Inc. v. Dukes, (208) the Supreme Court heightened Rule 23(a)(2)'s commonality requirement. As I have discussed elsewhere, (209) this five to four ruling by the conservative majority raised the bar for one of the easiest class action thresholds, thereby jeopardizing Title VII and related claims going forward. (210)

   Dukes involved former and current female employees who brought a class action against Wal-Mart Stores, Inc., on behalf of approximately 1.5 million women, alleging nationwide gender discrimination, in violation of Title VII. (211) Plaintiffs alleged that Wal-Mart gave its local managers unfettered discretion when making pay and promotions decisions, resulting in women being disproportionately underpaid and denied advancement. (212) To demonstrate that class members had enough in common with each other to justify collective action--as required by Rule 23(a)(2) (213)--plaintiffs proffered statistics showing gender disparities in pay and promotions; 120 employee affidavits reporting discrimination; and testimony from a sociologist, concluding that Wal-Mart's corporate culture and personnel practices made it susceptible to gender discrimination. (214)

   Conceding that even a single common question would suffice under Rule 23(a)(2), the Court concluded that the women failed to make even this minimal showing. (215) Relying on dicta in a footnote of General Telephone Co. of the Southwest v. Falcon, (216) the Court required plaintiffs to demonstrate commonality with "'[significant proof that Wal-Mart 'operated under a general policy of discrimination."' (217) Applying this new elevated commonality standard, the Court concluded that the statistical disparities, anecdotal accounts, and "social framework" evidence (218) proffered fell short of demonstrating that there was sufficient glue to hold the class together. (219)

   The Court's application of heightened commonality (220) to the evidence in Dukes portends a difficult future for workers attempting to collectively challenge alleged discrimination. (221) Dukes is flawed not only for its cramped analysis of the evidence in this case, (222) but also its interpretation of commonality for future Title VII cases. (223) The Court's interpretation goes well beyond Rule 23's text, (224) its historical underpinnings, (225) and decades of Title VII class action jurisprudence. (226) Professor Arthur R. Miller even suggests that, like the pleading standard, the commonality standard may now have imported something akin to a "plausibility" requirement. (227)

   Professor Miller's words of caution are well headed, given that one of the bases for the majority's conclusion that commonality had not been met was the Court's incredulity that an employer's "undisciplined system of subjective decisionmaking"--potentially actionable under Title VII--could be the glue that held the class together. (228) The Court's skepticism, if not disbelief, that a majority of Wal-Mart's managers might act--even subconsciously--in a way that disfavors women's employment opportunities (229) prevented the Court from reaching commonality. (230) It stated, without support, that "left to their own devices most managers in any corporation--and surely most managers in a corporation that forbids sex discrimination--would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all." (231) The Court required plaintiffs to identify a "common mode" of how supervisors exercised their discretion throughout the company, but then rebuffed the statistics, affidavits, and expert evidence indicating that gender bias might be the modality. (232)

   The Court was further dubious of any systemic gender bias because of the existence of an official written anti-discrimination policy. (233) Juxtaposing this written policy with Wal-Mart's policy of giving local supervisors unfettered discretion to make employment decisions, the Court concluded that plaintiffs had not met their evidentiary burden. (234) In stark contrast, the dissent--comprised of all the female justices and Justice Breyer--had little difficulty concluding that Wal-Mart's policy of unchecked discretion could result in systemic bias (235) and, therefore, justify classwide treatment. (236)

   Professor A. Benjamin Spencer situates Dukes squarely within a current restrictive ethos procedural trend--where societal outgroups (237) asserting disfavored claims against the dominant class (238) are increasingly restricted from court access and merits-based resolutions by higher procedural barriers. (239) He appropriately expresses concern over the majority's threshold skepticism of plaintiffs' discrimination claims and conditional access to the civil litigation system. (240) The Court's demand that plaintiffs produce "significant proof" of a general policy of discrimination as a precursor to its finding commonality, and the Court's reliance on its own prejudgment and worldview (241) when ascertaining what quantum of proof suffices, is untenable. (242) The Court's deciding to hold plaintiffs who challenge systemic discrimination to a higher evidentiary standard (243) for court access, and assessing the merits of those claims-- rather than leaving it to a jury (244)--run counter to the Rules' origins and the democratic process. (245)

   The impact of heightened commonality on Title VII and other civil rights cases is still being revealed, (246)but the direction does not look favorable. At the very least, Dukes hands defendants another tool for dismantling group action. (246) Unquestionably, classes the size and scope of the one proposed in Dukes will become even rarer. (248) But even classes of less magnitude and scope are suffering a fate similar to Dukes because of their underlying theory of liability. Like Dukes, many employment discrimination class actions are premised on excessive subjectivity as a discriminatory policy, which grounds Rule 23(a)(2) commonality. Thus, claimants arguing that a policy of unfettered discretionary decisionmaking is a vehicle for systemic workplace discrimination and disparities face a more formidable battle post -Dukes: (249) Dukes's, impact has gone even beyond Title VII and employment discrimination claims. Cases brought under the Equal Credit Opportunity Act (ECOA), (250) the Fair Housing Act (FHA), (251) and [section] 1981 (252) challenging lenders' discretionary pricing policies as discriminatory have also suffered this fate. (253)

   Post -Dukes, workers are being forced to engage the merits of their discrimination claims more at the class certification stage. To satisfy commonality, some judges are now requiring a stronger causal connection between an employer's discretionary decision-making policy, on the one hand, and an observed disparity or adverse employment action, on the other--thereby making it more difficult for employees to act collectively. (254)

   In Dukes, the Court favored a demanding examination of the merits that touch on any class certification criteria over an arms-length, more suspended approach. This decision put to rest a debate among lower courts over how to interpret Eisen v. Carlisle & Jacqueline (255) and General Telephone Co. v. Falcon. (256)

   Eisen's prohibition of certification conditioned on the merits and Falcon's insistence on a rigorous class certification analysis split the federal courts of appeals over the extent to which courts should address merits at the class certification stage. (257) Dukes resolved this debate, clarifying that Eisen was no bar to determining the merits when they overlapped with certification standards and that the "class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiffs cause of action." (258) However, Dukes went so far as to condition class certification on whether plaintiffs could provide significant proof of a discriminatory policy--in direct contravention of Eisen's prohibition. Thus, the Court has singled out Title VII cases for special treatment, subjecting plaintiffs to harsher court-entry when acting collectively. (259)

   The Court's stricter gatekeeping stance not only potentially bars group relief, but also elevates the amount of discovery--and subsequent costs and time--necessary to penetrate the class certification wall. This creates all the more reason for discovery to be generous in kind and scope. On the contrary, the trajectory for discovery has been increasingly constrictive. (260) Emboldened by the obstructionist civil litigation environment--set forth by Iqbal and Dukes--employers are now seeking to dismiss class claims on the face of the complaint pre-discovery, (261) and some are prevailing. (262)

   Plaintiffs are adjusting to the harsher certification climate to minimize the potentially damaging impact of Dukes. Plaintiffs' counsel is bringing smaller cases that are more geographically limited (263) to create a tighter nexus between decision-makers and alleged discriminatory conduct. Other strategies include seeking issue certification under Rule 23(c)(4), (264) creating subclasses, (265) defining the class more narrowly, (266) distinguishing Dukes, (267) filing class actions in state court, (268) and relying on statutes other than Title VII to challenge certain employment practices. (269) These strategies come with costs, some at their peril. (270)

   In sum, the Court's heightened commonality standard, like the pleading one, potentially undermines court access and denies formal resolution on the merits, but on an even larger scale. Withholding class certification--especially in cases involving small value claims and poor claimants--may deny relief altogether for such litigants (271) and compromise enforcement of anti-discrimination statutes more generally. (272)

2. Restrictive Certification Options...