Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)

(a) Rule 23(a)(2) requires a party seeking class certification to prove that the class has common “questions of law or fact.” Their claims must depend upon a common contention of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Here, proof of commonality neces sarily overlaps with respondents’ merits contention that Wal-Mart en gages in a pattern or practice of discrimination. The crux of a Title VII inquiry is “the reason for a particular employment decision,” Cooper p. 339v. Federal Reserve Bank of Richmond, 467 U. S. 867, 876, and respond ents wish to sue for millions of employment decisions at once. Without some glue holding together the alleged reasons for those decisions, it will be impossible to say that examination of all the class members’ claims will produce a common answer to the crucial discrimination ques tion. Pp. 349–352.

These plaintiffs, respondents here, do not allege that Wal-Mart has any express corporate policy against the ad vancement of women. Rather, they claim that their local managers’ discretion over pay and promotions is exercised disproportionately in favor of men, leading to an unlaw ful disparate impact on female employees, see 42 U. S. C. p. 345§ 2000e–2(k). And, respondents say, because Wal-Mart is aware of this effect, its refusal to cabin its managers’ au thority amounts to disparate treatment, see § 2000e–2(a). Their complaint seeks injunctive and declaratory relief, puni tive damages, and backpay. It does not ask for compensa tory damages.

Second, the proposed class must satisfy at least one of the three requirements listed in Rule 23(b). Respondents rely on Rule 23(b)(2), which applies when “the party opposing the class has acted or refused to act on grounds that apply gener ally to the class, so that final injunctive relief or correspond p. 346ing declaratory relief is appropriate respecting the class as a whole.”2

Wal-Mart unsuccessfully moved to strike much of this evi dence. It also offered its own countervailing statistical and other proof in an effort to defeat Rule 23(a)’s requirements p. 347of commonality, typicality, and adequate representation. Wal-Mart further contended that respondents’ monetary claims for backpay could not be certified under Rule 23(b)(2), first because that Rule refers only to injunctive and declara tory relief, and second because the backpay claims could not be manageably tried as a class without depriving Wal-Mart of its right to present certain statutory defenses. With one limitation not relevant here, the District Court granted re spondents’ motion and certified their proposed class.3

A divided en banc Court of Appeals substantially affirmed the District Court’s certification order. 603 F. 3d 571. The majority concluded that respondents’ evidence of commonal ity was sufficient to “raise the common question whether Wal-Mart’s female employees nationwide were subjected to a single set of corporate policies (not merely a number of independent discriminatory acts) that may have worked to unlawfully discriminate against them in violation of Title VII.” Id., at 612 (emphasis deleted). It also agreed with the District Court that the named plaintiffs’ claims were suf ficiently typical of the class as a whole to satisfy Rule 23(a)(3), and that they could serve as adequate class repre sentatives, see Rule 23(a)(4). Id., at 614–615. With respect to the Rule 23(b)(2) question, the Ninth Circuit held that respondents’ backpay claims could be certified as part of a (b)(2) class because they did not “predominat[e]” over the requests for declaratory and injunctive relief, meaning they were not “superior in strength, influence, or authority” to p. 348the nonmonetary claims. Id., at 616 (internal quotation marks and brackets omitted).4

The class action is “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Califano v. Yamasaki, 442 U. S. 682, 700–701 (1979). In order to justify a departure from that rule, “a class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the p. 349class members.” East Tex. Motor Freight System, Inc. v. Rodriguez, 431 U. S. 395, 403 (1977) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 216 (1974)). Rule 23(a) ensures that the named plaintiffs are appropriate representatives of the class whose claims they wish to liti gate. The Rule’s four requirements—numerosity, common ality, typicality, and adequate representation—“effectively ‘limit the class claims to those fairly encompassed by the named plaintiff ’s claims.’ ” General Telephone Co. of South west v. Falcon, 457 U. S. 147, 156 (1982) (quoting General Telephone Co. of Northwest v. EEOC, 446 U. S. 318, 330 (1980)).

The crux of this case is commonality—the rule requir ing a plaintiff to show that “there are questions of law or fact common to the class.” Rule 23(a)(2).5 That lan guage is easy to misread, since “[a]ny competently crafted class complaint literally raises common ‘questions.’ ” Naga reda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 131–132 (2009). For example: Do all of us plaintiffs indeed work for Wal-Mart? Do our managers have discretion over pay? Is that an unlawful employment practice? What remedies should we get? Reciting these questions is not sufficient to obtain class certification. Com p. 350monality requires the plaintiff to demonstrate that the class members “have suffered the same injury,” Falcon, supra, at 157. This does not mean merely that they have all suffered a violation of the same provision of law. Title VII, for exam ple, can be violated in many ways—by intentional discrimi nation, or by hiring and promotion criteria that result in dis parate impact, and by the use of these practices on the part of many different superiors in a single company. Quite obvi ously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate-impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for exam ple, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.

Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demon strate his compliance with the Rule—that is, he must be pre pared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. We recog nized in Falcon that “sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question,” 457 U. S., at 160, and that certifi cation is proper only if “the trial court is satisfied, after a p. 351rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied,” id., at 161; see id., at 160 (“[A]ctual, not pre sumed, conformance with Rule 23(a) remains . . . indispensa ble”). Frequently that “rigorous analysis” will entail some overlap with the merits of the plaintiff ’s underlying claim. That cannot be helped. “ ‘[T]he class determination gener ally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff ’s cause of action.’ ” Id., at 160 (quoting Coopers & Lybrand v. Livesay, 437 U. S. 463, 469 (1978); some internal quotation marks omitted).6 Nor is there anything unusual about that consequence: The necessity of touching aspects of the merits in order to resolve p. 352preliminary matters, e. g., jurisdiction and venue, is a famil iar feature of litigation. See Szabo v. Bridgeport Machines, Inc., 249 F. 3d 672, 676–677 (CA7 2001) (Easterbrook, J.).

“Conceptually, there is a wide gap between (a) an indi vidual’s claim that he has been denied a promotion [or p. 353higher pay] on discriminatory grounds, and his other wise unsupported allegation that the company has a pol icy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that indi vidual, such that the individual’s claim and the class claims will share common questions of law or fact and that the individual’s claim will be typical of the class claims.” Id., at 157–158.

The second manner of bridging the gap requires “[s]ignifi cant proof ” that Wal-Mart “operated under a general pol icy of discrimination.” That is entirely absent here. Wal Mart’s announced policy forbids sex discrimination, see App. 1567a–1596a, and as the District Court recognized the com pany imposes penalties for denials of equal employment opportunity, 222 F. R. D., at 154. The only evidence of a “general policy of discrimination” respondents produced was the testimony of Dr. William Bielby, their sociological p. 354expert. Relying on “social framework” analysis, Bielby tes tified that Wal-Mart has a “strong corporate culture,” that makes it “vulnerable” to “gender bias.” Id., at 152. He could not, however, “determine with any specificity how reg ularly stereotypes play a meaningful role in employment de cisions at Wal-Mart. At his deposition . . . Dr. Bielby con ceded that he could not calculate whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” 222 F. R. D. 189, 192 (ND Cal. 2004). The parties dispute whether Bielby’s testi mony even met the standards for the admission of expert testimony under Federal Rule of Evidence 702 and our Dau bert case, see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993).8 The District Court concluded that Daubert did not apply to expert testimony at the certi fication stage of class-action proceedings. 222 F. R. D., at 191. We doubt that is so, but even if properly considered, Bielby’s testimony does nothing to advance respondents’ case. “[W]hether 0.5 percent or 95 percent of the employ ment decisions at Wal-Mart might be determined by stereo typed thinking” is the essential question on which respond ents’ theory of commonality depends. If Bielby admittedly has no answer to that question, we can safely disregard p. 355what he has to say. It is worlds away from “[s]ignificant proof ” that Wal-Mart “operated under a general policy of discrimination.”

To be sure, we have recognized that, “in appropriate cases,” giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact the ory—since “an employer’s undisciplined system of subjective decisionmaking [can have] precisely the same effects as a system pervaded by impermissible intentional discrimina tion.” Id., at 990–991. But the recognition that this type of Title VII claim “can” exist does not lead to the conclusion that every employee in a company using a system of discre tion has such a claim in common. To the contrary, left to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex dis crimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all. Others may choose to reward various at tributes that produce disparate impact—such as scores on general aptitude tests or educational achievements, see Griggs v. Duke Power Co., 401 U. S. 424, 431–432 (1971). And still other managers may be guilty of intentional dis crimination that produces a sex-based disparity. In such a company, demonstrating the invalidity of one manager’s use p. 356of discretion will do nothing to demonstrate the invalidity of another’s. A party seeking to certify a nationwide class will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions.

Even if they are taken at face value, these studies are in sufficient to establish that respondents’ theory can be proved on a classwide basis. In Falcon, we held that one named plaintiff ’s experience of discrimination was insufficient to infer that “discriminatory treatment is typical of [the em ployer’s employment] practices.” 457 U. S., at 158. A simi lar failure of inference arises here. As Judge Ikuta ob served in her dissent, “[i]nformation about disparities at the regional and national level does not establish the existence p. 357of disparities at individual stores, let alone raise the infer ence that a company-wide policy of discrimination is imple mented by discretionary decisions at the store and district level.” 603 F. 3d, at 637. A regional pay disparity, for ex ample, may be attributable to only a small set of Wal-Mart stores, and cannot by itself establish the uniform, store-by store disparity upon which the plaintiffs’ theory of common ality depends.

“held a multitude of jobs, at different levels of Wal Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of p. 360regional policies that all differed . . . . Some thrived while others did poorly. They have little in common but their sex and this lawsuit.” 603 F. 3d, at 652 (dissent ing opinion).

Rule 23(b)(2) allows class treatment when “the party op posing 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.” One possible reading of this provision is that it applies only to requests for such injunctive or de claratory relief and does not authorize the class certification of monetary claims at all. We need not reach that broader question in this case, because we think that, at a minimum, claims for individualized relief (like the backpay at issue here) do not satisfy the Rule. The key to the (b)(2) class is “the indivisible nature of the injunctive or declaratory rem edy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Nagareda, 84 N. Y. U. L. Rev., at 132. In other words, Rule 23(b)(2) ap plies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declar atory judgment against the defendant. Similarly, it does not p. 361authorize class certification when each class member would be entitled to an individualized award of monetary damages.

Permitting the combination of individualized and classwide relief in a (b)(2) class is also inconsistent with the struc ture of Rule 23(b). Classes certified under (b)(1) and (b)(2) share the most traditional justifications for class treatment—that individual adjudications would be impossible or unwork able, as in a (b)(1) class,11 or that the relief sought must per p. 362force affect the entire class at once, as in a (b)(2) class. For that reason these are also mandatory classes: The Rule pro vides no opportunity for (b)(1) or (b)(2) class members to opt out, and does not even oblige the District Court to afford them notice of the action. Rule 23(b)(3), by contrast, is an “adventuresome innovation” of the 1966 amendments, Amchem, 521 U. S., at 614 (internal quotation marks omitted), framed for situations “in which ‘class-action treatment is not as clearly called for,’ ” id., at 615 (quoting Advisory Commit tee’s Notes, 28 U. S. C. App., p. 697 (1994 ed.)). It allows class certification in a much wider set of circumstances but with greater procedural protections. Its only prerequisites are that “the questions of law or fact common to class mem bers predominate over any questions affecting only individ ual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Rule 23(b)(3). And unlike (b)(1) and (b)(2) classes, the (b)(3) class is not mandatory; class members are entitled to receive “the best notice that is practicable under the circumstances” and to withdraw from the class at their option. See Rule 23(c)(2)(B).

Given that structure, we think it clear that individualized monetary claims belong in Rule 23(b)(3). The procedural protections attending the (b)(3) class—predominance, superi ority, mandatory notice, and the right to opt out—are miss ing from (b)(2) not because the Rule considers them unneces sary, but because it considers them unnecessary to a (b)(2) class. When a class seeks an indivisible injunction benefit ing all its members at once, there is no reason to undertake a case-specific inquiry into whether class issues predominate or whether class action is a superior method of adjudicating p. 363the dispute. Predominance and superiority are self-evident. But with respect to each class member’s individualized claim for money, that is not so—which is precisely why (b)(3) re quires the judge to make findings about predominance and superiority before allowing the class. Similarly, (b)(2) does not require that class members be given notice and opt-out rights, presumably because it is thought (rightly or wrongly) that notice has no purpose when the class is mandatory, and that depriving people of their right to sue in this manner complies with the Due Process Clause. In the context of a class action predominantly for money damages we have held that absence of notice and opt out violates due process. See Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 812 (1985). While we have never held that to be so where the monetary claims do not predominate, the serious possibility that it may be so provides an additional reason not to read Rule 23(b)(2) to include the monetary claims here.

Against that conclusion, respondents argue that their claims for backpay were appropriately certified as part of a class under Rule 23(b)(2) because those claims do not “pre dominate” over their requests for injunctive and declaratory relief. They rely upon the Advisory Committee’s statement that Rule 23(b)(2) “does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” 28 U. S. C. App., p. 1260 (1964 ed., Supp. II) (emphasis added). The negative implication, they argue, is that it does extend to cases in which the appropriate final relief relates only partially and nonpredominantly to money damages. Of course it is the Rule itself, not the Ad visory Committee’s description of it, that governs. And a mere negative inference does not in our view suffice to estab lish a disposition that has no basis in the Rule’s text, and that does obvious violence to the Rule’s structural features. The mere “predominance” of a proper (b)(2) injunctive claim p. 364does nothing to justify elimination of Rule 23(b)(3)’s proce dural protections: It neither establishes the superiority of class adjudication over individual adjudication nor cures the notice and opt-out problems. We fail to see why the Rule should be read to nullify these protections whenever a plain tiff class, at its option, combines its monetary claims with a request—even a “predominating request”—for an injunction.

The predominance test would also require the District Court to reevaluate the roster of class members continually. The Ninth Circuit recognized the necessity for this when it concluded that those plaintiffs no longer employed by Wal-Mart lack standing to seek injunctive or declaratory relief against its employment practices. The Court of Appeals’ re sponse to that difficulty, however, was not to eliminate all former employees from the certified class, but to eliminate only those who had left the company’s employ by the date p. 365the complaint was filed. That solution has no logical connec tion to the problem, since those who have left their Wal-Mart jobs since the complaint was filed have no more need for prospective relief than those who left beforehand. As a con sequence, even though the validity of a (b)(2) class depends on whether “final injunctive relief or corresponding declara tory relief is appropriate respecting the class as a whole,” Rule 23(b)(2) (emphasis added), about half the members of the class approved by the Ninth Circuit have no claim for injunctive or declaratory relief at all. Of course, the alter native (and logical) solution of excising plaintiffs from the class as they leave their employment may have struck the Court of Appeals as wasteful of the District Court’s time. Which indeed it is, since if a backpay action were properly certified for class treatment under (b)(3), the ability to liti gate a plaintiff ’s backpay claim as part of the class would not turn on the irrelevant question whether she is still employed at Wal-Mart. What follows from this, however, is not that some arbitrary limitation on class membership should be im posed but that the backpay claims should not be certified under Rule 23(b)(2) at all.

In Allison v. Citgo Petroleum Corp., 151 F. 3d 402, 415 (CA5 1998), the Fifth Circuit held that a (b)(2) class would permit the certification of monetary relief that is “incidental to requested injunctive or declaratory relief,” which it de p. 366fined as “damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunc tive or declaratory relief.” In that court’s view, such “inci dental damages should not require additional hearings to re solve the disparate merits of each individual’s case; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations.” Ibid. We need not decide in this case whether there are any forms of “incidental” monetary relief that are consistent with the interpretation of Rule 23(b)(2) we have announced and that comply with the Due Process Clause. Respondents do not argue that they can satisfy this standard, and in any event they cannot.

We have established a procedure for trying pattern-or practice cases that gives effect to these statutory require ments. When the plaintiff seeks individual relief such as reinstatement or backpay after establishing a pattern or practice of discrimination, “a district court must usually con duct additional proceedings . . . to determine the scope of individual relief.” Teamsters, 431 U. S., at 361. At this phase, the burden of proof will shift to the company, but it p. 367will have the right to raise any individual affirmative de fenses it may have, and to “demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.” Id., at 362.

The class in this case, I agree with the Court, should not have been certified under Federal Rule of Civil Procedure 23(b)(2). The plaintiffs, alleging discrimination in violation p. 368of Title VII, 42 U. S. C. § 2000e et seq., seek monetary re lief that is not merely incidental to any injunctive or declara tory relief that might be available. See ante, at 360–367. A putative class of this type may be certifiable under Rule 23(b)(3), if the plaintiffs show that common class questions “predominate” over issues affecting individuals—e. g., quali fication for, and the amount of, backpay or compensatory damages—and that a class action is “superior” to other modes of adjudication.

Rule 23(a)(2) establishes a preliminary requirement for maintaining a class action: “[T]here are questions of law or fact common to the class.”2 The Rule “does not require that all questions of law or fact raised in the litigation be com p. 369mon,” 1 H. Newberg & A. Conte, Newberg on Class Actions § 3.10, pp. 3–48 to 3–49 (3d ed. 1992); indeed, “[e]ven a single question of law or fact common to the members of the class will satisfy the commonality requirement,” Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149, 176, n. 110 (2003). See Advisory Committee’s 1937 Notes on Fed. Rule Civ. Proc. 23, 28 U. S. C. App., p. 138 (citing with approval cases in which “there was only a question of law or fact common to” the class members).

The District Court identified “systems for . . . promoting in-store employees” that were “sufficiently similar across re gions and stores” to conclude that “the manner in which p. 371these systems affect the class raises issues that are common to all class members.” 222 F. R. D., at 149. The selection of employees for promotion to in-store management “is fairly characterized as a ‘tap on the shoulder’ process,” in which managers have discretion about whose shoulders to tap. Id., at 148. Vacancies are not regularly posted; from among those employees satisfying minimum qualifications, manag ers choose whom to promote on the basis of their own subjec tive impressions. Ibid.

The plaintiffs’ evidence, including class members’ tales of their own experiences,4 suggests that gender bias suffused Wal-Mart’s company culture. Among illustrations, senior management often refer to female associates as “little Janie p. 372Qs.” Plaintiffs’ Motion for Class Certification in No. 3:01– cv–02252–CRB (ND Cal.), Doc. 99, p. 21 (internal quotation marks omitted). One manager told an employee that “[m]en are here to make a career and women aren’t.” 222 F. R. D., at 166 (internal quotation marks omitted). A committee of female Wal-Mart executives concluded that “[s]tereotypes limit the opportunities offered to women.” Plaintiffs’ Mo tion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, at 24 (internal quotation marks omitted).

The District Court’s identification of a common question, whether Wal-Mart’s pay and promotions policies gave rise to unlawful discrimination, was hardly infirm. The practice of delegating to supervisors large discretion to make person nel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate ef fects. Managers, like all humankind, may be prey to biases p. 373of which they are unaware.6 The risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes.

We have held that “discretionary employment practices” can give rise to Title VII claims, not only when such prac tices are motivated by discriminatory intent but also when they produce discriminatory results. See Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 988, 991 (1988). But see ante, at 357 (“[P]roving that [a] discretionary system has produced a . . . disparity is not enough.”). In Watson, as here, an employer had given its managers large authority over promotions. An employee sued the bank under Title VII, alleging that the “discretionary promotion system” p. 374caused a discriminatory effect based on race. 487 U. S., at 984 (internal quotation marks omitted). Four different su pervisors had declined, on separate occasions, to promote the employee. Id., at 982. Their reasons were subjective and unknown. The employer, we noted, “had not developed pre cise and formal criteria for evaluating candidates”; “[i]t relied instead on the subjective judgment of supervisors.” Ibid.

The Court gives no credence to the key dispute common to the class: whether Wal-Mart’s discretionary pay and pro motion policies are discriminatory. See ante, at 349 (“Re citing” questions like “Is [giving managers discretion over pay] an unlawful employment practice?” “is not sufficient to obtain class certification.”). “What matters,” the Court asserts, “is not the raising of common ‘questions,’ ” but whether there are “[d]issimilarities within the proposed p. 375class” that “have the potential to impede the generation of common answers.” Ante, at 350 (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 132 (2009); some internal quotation marks omitted).

Because Rule 23(a) is also a prerequisite for Rule 23(b)(1) and Rule 23(b)(2) classes, the Court’s “dissimilarities” posi tion is far reaching. Individual differences should not bar a Rule 23(b)(1) or Rule 23(b)(2) class, so long as the Rule 23(a) threshold is met. See id., at 623, n. 19 (Rule 23(b)(1)(B) “does not have a predominance requirement”); Yamasaki, 442 U. S., at 701 (Rule 23(b)(2) action in which the Court noted that “[i]t is unlikely that differences in the factual background of each claim will affect the outcome of the legal p. 377issue”). For example, in Franks v. Bowman Transp. Co., 424 U. S. 747 (1976), a Rule 23(b)(2) class of African-American truckdrivers complained that the defendant had discriminatorily refused to hire black applicants. We recog nized that the “qualification[s] and performance” of individ ual class members might vary. Id., at 772 (internal quo tation marks omitted). “Generalizations concerning such individually applicable evidence,” we cautioned, “cannot serve as a justification for the denial of [injunctive] relief to the entire class.” Ibid.