- In a split 5-4 decision, the Supreme Court ruled against the plaintiffs on the grounds of “commonality” which, in the Supreme Court’s opinion was lacking for a million and a half of women who wanted to sue Wal-Mart based on gender oppression and pay discrimination. Since the enormous scale of Dukes v. Wal-Mart had a stake in issues beyond Wal-Mart’s employment practices, the Supreme Court decision could affect the political and social life, not to mention the trial of an entire culture of sexism which influenced many decisions across the company. A crucial episode in the ruling was the misclassification of the case by the Supreme Court, which saw women’s additional demand for pay as belonging to a b(3) claim, opposed to a b(2) claim that would allow the plaintiffs to seek injunctive or declaratory relief. Many questions could be raised: for example, how could Justice Scalia refer to Wal-Mart corporate literature and be sure, in front of a 1,5 million women, that no discrimination could occur if the corporate policy forbade it? By making “commonality” central to their ruling, the Supreme Court decided that the women failed to meet the requirement for Rule 23, since there appeared to be no common solution to solve the common problem in one stroke. Because of situational differences there was “no glue holding the alleged reasons for all those decisions together”, therefore the individual cases of women could not be litigated all at once.
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