by Anne King
As I wrote previously, as courts apply the Supreme Court’s decision in Wal-Mart Stores Inc. v. Dukes, observers are ever gaining new insight on how the opinion will impact future litigation. Nearly four months after Dukes (decided 6/20/11), I thought it would be interesting to take a look at whether a noteworthy passage in the majority opinion is finding any traction in the courts.
Here’s the language I have in mind: “To the contrary, 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.”
Unsurprisingly, the majority’s characterization of “most managers” caught the attention of many. The dissent responded with the observation that “Managers, like all humankind, may be prey to biases of which they are unaware.” Suzette Malveaux, in a recent article, described the statement as indicating “the majority’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 prospects.”
And although the “most managers” language arises in the context of establishing commonality in a class action, it’s difficult to ignore its possible consequences for individual employment discrimination plaintiffs.
Four months out, are courts echoing the idea that “most managers in any corporation . . . would select sex-neutral, performance-based criteria for hiring and promotion?” Based on a search of cases applying Dukes, the answer is: not yet, at least not explicitly – and not at all in the context of individual employment discrimination litigation. One Northern District of California judge, in In re Wells Fargo Residential Mortgage Lending Discrimination Litigation, had an interesting take, quoting Dukes but converting “most managers” to “some managers”: “Some managers ‘may select sex-neutral, performance-based criteria,’ others ‘may chose to reward various attributes,’ and ‘still other managers may be guilty of intentional discrimination.”’ (Still, the Wells Fargo court applied Dukes to deny class certification.)