A hue and cry went up earlier this week in response to the Supreme Court’s decision in Walmart v. Dukes. In at least some respects, the outcry is justified. After Dukes, plaintiff groups who seek money damages for job discrimination under Title VII of the 1964 Civil Rights Act can join together only where they can, according to the Court in a memorable passage, point to some “glue” that binds together their allegations, such as discriminatory treatment by the “same supervisor.” The Court also took a broad (and likely fatal) swipe at the so-called “trial-by-statistics” approach in which the results of a series of mini-trials of a few representative class members are extrapolated to the broader population of plaintiffs. As many commentators have noted, the Dukes decision thus kills many large-scale job discrimination class actions.
In other respects, however, the attention the case has received is puzzling. The truth is that the job discrimination class action lost much of its vitality long ago. Compared to yesteryear, the 21st-century workplace is less hierarchical and less likely to be infected with overt forms of bias. Damages suits, some have argued, are particularly ill-suited to remedying “second generation” discrimination in which patterns of inequality result from “implicit” or “subconscious” forms of bias and often cannot be traced to particular decision-making nodes. Indeed, the Dukes plaintiffs, by linking local managerial discretion to broader statistical patterns, were part of a wider effort to adapt Title VII to these changing workplace realities. Few in the civil rights community thought courts—let alone the Supreme Court—would bless their approach.