By Jessica Smith
At the end of this month, the U.S. Supreme Court will hear oral arguments on Wal-mart v. Dukes, a case which could have a significant impact on employment discrimination class action lawsuits. In Dukes, representatives of female Wal-mart employees alleged discrimination on the basis of gender in violation of Title VII of the Civil Rights Act of 1964. 
The female plaintiffs, who worked in various positions at Wal-mart, claimed they were paid less than their male counterparts despite seniority and superior performance records. Plaintiffs further alleged that female employees as a whole received fewer promotions or were promoted after longer periods of time than their male colleagues. Both of these claims may seem fairly typical, however, the controversy does not revolve around the claims themselves, but it rather revolves around the class of plaintiffs. Dukes is the largest class action suit brought in the United States to date, with more than one and a half million female employees included.
Under the current federal standard, the size of a class seeking certification should not matter. Under Federal Rule of Civil Procedure 23(a), parties can sue or be sued as a class if the class would be so large as to make joinder of the members impracticable, the members’ claims share common questions of law or fact, representatives have claims or defenses typical of the class, and the representative parties will fairly and adequately protect the class’s interest.[vi] Rule 23(b)(2), the provision the Plaintiff class was certified under, allows the formation of a class when, in addition to fulfilling the requirements under subsection (a), “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”[vii] The rule requires a common thread that unites the plaintiffs as well as their claims and interests, whether that exists here is precisely the debate. The class certified by the district court in Dukes included all female employees employed after December 26, 1998, a group which held 170 different positions. The class also included both part-time hourly positions as well as full-time salaried managers, in 3,400 different stores throughout the country.[viii] The Plaintiffs assert that the size of the class is irrelevant and that the class of female employees was appropriate since Wal-mart’s discriminatory policies and practices were consistent throughout its enterprise.[ix]
Wal-mart challenged on appeal, arguing that the class should never have been certified by the district court as due to diversity, any claims asserted or relief granted could not be appropriate across the board.[x] An argument that critics tout insinuates that Wal-mart is “too big to be held accountable.”[xi] In a close vote, the Ninth Circuit rejected this argument, finding no obstacle in size as the other criteria required under Rule 23 were met.[xii] It is unclear whether the Supreme Court will do the same. It is clear that the Dukes decision will be a huge boom or bust for class action litigation, where often size is the plaintiff’s greatest weapon in reaching settlement.[xiii] Dukes is poised to tip the scales in class action cases, whether big corporate defendants or class action plaintiffs will receive its benefit has yet to be determined.
 Dukes v. Wal-mart Stores, 603 F.3d 571, 578 (9th Cir. 2010), cert granted sub nom, Wal-mart Stores v. Dukes,
79 U.S.L.W. 3342 (U.S. Dec. 6, 2010) (No. 10-277).
 Dukes, 603 F.3d at 578.
 McElroy, supra note 2.
 Robert Barnes, Supreme Court Agrees to Hear Wal-Mart’s Appeal of Class-Action Discrimination Suit, Wash. Post (Dec. 6, 2010), http://www.washingtonpost.com/wp-dyn/content/article/2010/12/06/AR2010120602773.html.
[vi] Fed. R. Civ. Pro. 23(a).
[vii] Dukes, 603 F.3d at 615; Fed. R. Civ. P. 23(b)(2).
[viii]Dukes, 603 F.3d at 578; Adam Liptak & Steven Greenhouse, Supreme Court Agrees to Hear Wal-Mart Appeal, N.Y. Times (Dec. 6, 2010), http://www.nytimes.com/2010/12/07/business/07bizcourt.html.
[ix] Dukes, 603 F.3d at 578; Liptak & Greenhouse, supra note 8.
[x] McElroy, supra note 2.
[xii] Dukes, 603 F.3d at 614-15.
[xiii] See Liptak & Greenhouse, supra note 8.