Women v. Men, The Class Action Suit?

As we move from spring into early summer, the season turns to watching the U.S. Supreme Court render its final decisions of the term. Among the most-anticipated this session was their decision in Wal-Mart v. Dukes, a potentially massive class action suit that has had ripple effects throughout our economy.

The Court, issuing what was in effect a two-part decision, struck down the Ninth Circuit’s certification of the class of female employees. It was in two parts because, while the nine justices were unanimous in their vacating of one of the procedural issues, they were split on the overall question of whether the total class ought to be certified. In the usual bit of kabuki theater, left-wing pundits decried the decision as a “blow for corporate privilege” while the right was talking about the importance of this decision to business.

But the decision is important to all of us, corporatists and capitalists alike.

Women, per se, are not a “class,” as that definition pertains to the rules underlying class action lawsuits. If anything else, this definition was an affirmation of individual rights -- especially the individual right to sue someone else for the actual harms they may have caused them.

Women and men are each individually different. Each person has his or her own strengths and weaknesses, our own different experiences, our own attributes and deficiencies. What the High Court affirmed was the idea that for the class action suit to have merit, the so-called class of plaintiffs needed to have far more commonality in their experiences to merit a “class” for the purposes of the class action suit.

Essentially, all the class really had in common was that they were all women who were employed by Wal-Mart, and that wasn’t enough “glue” to hold the class together. It would be akin to someone filing a lawsuit on behalf of all women for discrimination by all men, an argument that might seem absurd on its face, but really isn’t when one considers the prevalence of class action lawsuits in today’s society.

What the High Court stated yesterday was very plain: in order for a class to proceed, you have to have some sort of real and verifiable nexus between the plaintiffs, some common actuality -- like a VCR that habitually catches fire or drywall that causes mold. In this particular case, the plaintiffs’ attorneys weren’t relying on actual claims from the women in the class, but on sampling data and anecdotes. But because litigation is supposed to focus on real cases and controversies, samples and anecdotes simply won’t work.