Wal-Mart Stores, Inc. v. Dukes

(Slip Opinion) OCTOBER TERM, 2010 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

WAL-MART STORES, INC. v. DUKES ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 10–277. Argued March 29, 2011—Decided June 20, 2011

Respondents, current or former employees of petitioner Wal-Mart,

sought judgment against the company for injunctive and declaratory

relief, punitive damages, and backpay, on behalf of themselves and a

nationwide class of some 1.5 million female employees, because of

Wal-Mart’s alleged discrimination against women in violation of Title

VII of the Civil Rights Act of 1964. They claim that local managers

exercise their discretion over pay and promotions disproportionately

in favor of men, which has an unlawful disparate impact on female

employees; and that Wal-Mart’s refusal to cabin its managers’ au

thority amounts to disparate treatment. The District Court certified

the class, finding that respondents satisfied Federal Rule of Civil

Procedure 23(a), and Rule 23(b)(2)’s requirement of showing that “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 corre

sponding declaratory relief is appropriate respecting the class as a

whole.” The Ninth Circuit substantially affirmed, concluding, inter

alia, that respondents met Rule 23(a)(2)’s commonality requirement

and that their backpay claims could be certified as part of a (b)(2)

class because those claims did not predominate over the declaratory

and injunctive relief requests. It also ruled that the class action

could be manageably tried without depriving Wal-Mart of its right to

present its statutory defenses if the District Court selected a random

set of claims for valuation and then extrapolated the validity and

value of the untested claims from the sample set.

Held:

1. The certification of the plaintiff class was not consistent with

Rule 23(a). Pp. 8–20.

(a) Rule 23(a)(2) requires a party seeking class certification to

2 WAL-MART STORES, INC. v. DUKES

Syllabus

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 determina

tion 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 com

monality necessarily overlaps with respondents’ merits contention

that Wal-Mart engages in a pattern or practice of discrimination.

The crux of a Title VII inquiry is “the reason for a particular em

ployment decision,” Cooper v. Federal Reserve Bank of Richmond, 467

U. S. 867, 876, and respondents wish to sue for millions of employ

ment decisions at once. Without some glue holding together the al

leged reasons for those decisions, it will be impossible to say that ex

amination of all the class members’ claims will produce a common

answer to the crucial discrimination question. Pp. 8–12.

(b) General Telephone Co. of Southwest v. Falcon, 457 U. S. 147,

describes the proper approach to commonality. On the facts of this

case, the conceptual gap between an individual’s discrimination claim

and “the existence of a class of persons who have suffered the same

injury,” id., at 157–158, must be bridged by “[s]ignificant proof that

an employer operated under a general policy of discrimination,” id.,

at 159, n. 15. Such proof is absent here. Wal-Mart’s announced pol

icy forbids sex discrimination, and the company has penalties for de

nials of equal opportunity. Respondents’ only evidence of a general

discrimination policy was a sociologist’s analysis asserting that Wal-

Mart’s corporate culture made it vulnerable to gender bias. But be

cause he could not estimate what percent of Wal-Mart employment

decisions might be determined by stereotypical thinking, his testi

mony was worlds away from “significant proof” that Wal-Mart “oper

ated under a general policy of discrimination.” Pp. 12–14.

(c) The only corporate policy that the plaintiffs’ evidence convinc

ingly establishes is Wal-Mart’s “policy” of giving local supervisors

discretion over employment matters. While such a policy could be

the basis of a Title VII disparate-impact claim, recognizing that a

claim “can” exist does not mean that every employee in a company

with that policy has a common claim. In a company of Wal-Mart’s

size and geographical scope, it is unlikely that all managers would

exercise their discretion in a common way without some common di

rection. Respondents’ attempt to show such direction by means of

statistical and anecdotal evidence falls well short. Pp. 14–20.

2. Respondents’ backpay claims were improperly certified under

Rule 23(b)(2). Pp. 20–27.

(a) Claims for monetary relief may not be certified under Rule

23(b)(2), at least where the monetary relief is not incidental to the

requested injunctive or declaratory relief. It is unnecessary to decide

Cite as: 564 U. S. ____ (2011) 3

Syllabus

whether monetary claims can ever be certified under the Rule be

cause, at a minimum, claims for individualized relief, like backpay,

are excluded. Rule 23(b)(2) applies only when a single, indivisible

remedy would provide relief to each class member. The Rule’s his

tory and structure indicate that individualized monetary claims be

long instead in Rule 23(b)(3), with its procedural protections of pre

dominance, superiority, mandatory notice, and the right to opt out.

Pp. 20–23.

(b) Respondents nonetheless argue that their backpay claims

were appropriately certified under Rule 23(b)(2) because those claims

do not “predominate” over their injunctive and declaratory relief re

quests. That interpretation has no basis in the Rule’s text and does

obvious violence to the Rule’s structural features. The mere “pre

dominance” of a proper (b)(2) injunctive claim does nothing to justify

eliminating Rule 23(b)(3)’s procedural protections, and creates incen

tives for class representatives to place at risk potentially valid mone

tary relief claims. Moreover, a district court would have to reevalu

ate the roster of class members continuously to excise those who

leave their employment and become ineligible for classwide injunc

tive or declaratory relief. By contrast, in a properly certified (b)(3)

class action for backpay, it would be irrelevant whether the plaintiffs

are still employed at Wal-Mart. It follows that backpay claims

should not be certified under Rule 23(b)(2). Pp. 23–26.

(c) It is unnecessary to decide whether there are any forms of “in

cidental” monetary relief that are consistent with the above interpre

tation of Rule 23(b)(2) and the Due Process Clause because respon

dents’ backpay claims are not incidental to their requested

injunction. Wal-Mart is entitled to individualized determinations of

each employee’s eligibility for backpay. Once a plaintiff establishes a

pattern or practice of discrimination, a district court must usually

conduct “additional proceedings . . . to determine the scope of indi

vidual relief.” Teamsters v. United States, 431 U. S. 324, 361. The

company can then raise individual affirmative defenses and demon

strate that its action was lawful. Id., at 362. The Ninth Circuit erred

in trying to replace such proceedings with Trial by Formula. Because

Rule 23 cannot be interpreted to “abridge, enlarge or modify any sub

stantive right,” 28 U. S. C. §2072(b), a class cannot be certified on the

premise that Wal-Mart will not be entitled to litigate its statutory de

fenses to individual claims. Pp. 26–27.

603 F. 3d 571, reversed.

SCALIA, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined, and in which GINS-

BURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined as to Parts I and III.

4 WAL-MART STORES, INC. v. DUKES

Syllabus

GINSBURG, J., filed an opinion concurring in part and dissenting in part,

in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined.

Cite as: 564 U. S. ____ (2011) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–277

_________________

WAL-MART STORES, INC., PETITIONER v.

BETTY DUKES ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 20, 2011]

JUSTICE SCALIA delivered the opinion of the Court.

We are presented with one of the most expansive class

actions ever. The District Court and the Court of Appeals

approved the certification of a class comprising about one

and a half million plaintiffs, current and former female

employees of petitioner Wal-Mart who allege that the

discretion exercised by their local supervisors over pay

and promotion matters violates Title VII by discriminat

ing against women. In addition to injunctive and declara

tory relief, the plaintiffs seek an award of backpay. We

consider whether the certification of the plaintiff class

was consistent with Federal Rules of Civil Procedure 23(a)

and (b)(2).

I

A

Petitioner Wal-Mart is the Nation’s largest private

employer. It operates four types of retail stores through

out the country: Discount Stores, Supercenters, Neighbor

hood Markets, and Sam’s Clubs. Those stores are divided

into seven nationwide divisions, which in turn comprise 41

regions of 80 to 85 stores apiece. Each store has between

2 WAL-MART STORES, INC. v. DUKES

Opinion of the Court

40 and 53 separate departments and 80 to 500 staff posi

tions. In all, Wal-Mart operates approximately 3,400

stores and employs more than one million people.

Pay and promotion decisions at Wal-Mart are generally

committed to local managers’ broad discretion, which is

exercised “in a largely subjective manner.” 222 F. R. D.

137, 145 (ND Cal. 2004). Local store managers may in

crease the wages of hourly employees (within limits) with

only limited corporate oversight. As for salaried employ

ees, such as store managers and their deputies, higher

corporate authorities have discretion to set their pay with

in preestablished ranges.

Promotions work in a similar fashion. Wal-Mart per

mits store managers to apply their own subjective criteria

when selecting candidates as “support managers,” which is

the first step on the path to management. Admission to

Wal-Mart’s management training program, however, does

require that a candidate meet certain objective criteria,

including an above-average performance rating, at least

one year’s tenure in the applicant’s current position, and a

willingness to relocate. But except for those requirements,

regional and district managers have discretion to use their

own judgment when selecting candidates for management

training. Promotion to higher office—e.g., assistant man

ager, co-manager, or store manager—is similarly at the

discretion of the employee’s superiors after prescribed

objective factors are satisfied.

B

The named plaintiffs in this lawsuit, representing the

1.5 million members of the certified class, are three cur

rent or former Wal-Mart employees who allege that the

company discriminated against them on the basis of their

sex by denying them equal pay or promotions, in violation

of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as

Cite as: 564 U. S. ____ (2011) 3

Opinion of the Court

amended, 42 U. S. C. §2000e–1 et seq.1

Betty Dukes began working at a Pittsburg, California,

Wal-Mart in 1994. She started as a cashier, but later

sought and received a promotion to customer service man

ager. After a series of disciplinary violations, however,

Dukes was demoted back to cashier and then to greeter.

Dukes concedes she violated company policy, but contends

that the disciplinary actions were in fact retaliation for

invoking internal complaint procedures and that male

employees have not been disciplined for similar infrac

tions. Dukes also claims two male greeters in the Pitts

burg store are paid more than she is.

Christine Kwapnoski has worked at Sam’s Club stores

in Missouri and California for most of her adult life. She

has held a number of positions, including a supervisory

position. She claims that a male manager yelled at her

frequently and screamed at female employees, but not at

men. The manager in question “told her to ‘doll up,’ to

wear some makeup, and to dress a little better.” App.

1003a.

The final named plaintiff, Edith Arana, worked at a

Wal-Mart store in Duarte, California, from 1995 to 2001.

In 2000, she approached the store manager on more than

one occasion about management training, but was brushed

off. Arana concluded she was being denied opportunity for

advancement because of her sex. She initiated internal

complaint procedures, whereupon she was told to apply

directly to the district manager if she thought her store

manager was being unfair. Arana, however, decided

against that and never applied for management training

again. In 2001, she was fired for failure to comply with

Wal-Mart’s timekeeping policy.

These plaintiffs, respondents here, do not allege that

——————

1 The complaint included seven named plaintiffs, but only three re

main part of the certified class as narrowed by the Court of Appeals.

4 WAL-MART STORES, INC. v. DUKES

Opinion of the Court

Wal-Mart has any express corporate policy against the

advancement of women. Rather, they claim that their

local managers’ discretion over pay and promotions is

exercised disproportionately in favor of men, leading to an

unlawful disparate impact on female employees, see 42

U. S. C. §2000e–2(k). And, respondents say, because Wal-

Mart is aware of this effect, its refusal to cabin its manag

ers’ authority amounts to disparate treatment, see

§2000e–2(a). Their complaint seeks injunctive and de

claratory relief, punitive damages, and backpay. It does

not ask for compensatory damages.

Importantly for our purposes, respondents claim that

the discrimination to which they have been subjected is

common to all Wal-Mart’s female employees. The basic

theory of their case is that a strong and uniform “corporate

culture” permits bias against women to infect, perhaps

subconsciously, the discretionary decisionmaking of each

one of Wal-Mart’s thousands of managers—thereby mak

ing every woman at the company the victim of one com

mon discriminatory practice. Respondents therefore wish

to litigate the Title VII claims of all female employees at

Wal-Mart’s stores in a nationwide class action.

C

Class certification is governed by Federal Rule of Civil

Procedure 23. Under Rule 23(a), the party seeking certifi

cation must demonstrate, first, that:

“(1) the class is so numerous that joinder of all mem-

bers is impracticable,

“(2) there are questions of law or fact common to the

class,

“(3) the claims or defenses of the representative par

ties are typical of the claims or defenses of the class,

and

“(4) the representative parties will fairly and ade

quately protect the interests of the class” (paragraph

Cite as: 564 U. S. ____ (2011) 5

Opinion of the Court

breaks added).

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

generally to the class, so that final injunctive relief or

corresponding declaratory relief is appropriate respecting

the class as a whole.”2

Invoking these provisions, respondents moved the Dis

trict Court to certify a plaintiff class consisting of “ ‘[a]ll

women employed at any Wal-Mart domestic retail store

at any time since December 26, 1998, who have been or

may be subjected to Wal-Mart’s challenged pay and man

agement track promotions policies and practices.’ ” 222

F. R. D., at 141–142 (quoting Plaintiff ’s Motion for Class

Certification in case No. 3:01–cv–02252–CRB (ND Cal.),

Doc. 99, p. 37). As evidence that there were indeed “ques

tions of law or fact common to” all the women of Wal-Mart,

as Rule 23(a)(2) requires, respondents relied chiefly on

three forms of proof: statistical evidence about pay and

promotion disparities between men and women at the

company, anecdotal reports of discrimination from about

120 of Wal-Mart’s female employees, and the testimony of

a sociologist, Dr. William Bielby, who conducted a “social

——————

2 Rule 23(b)(1) allows a class to be maintained where “prosecuting

separate actions by or against individual class members would create a

risk of ” either “(A) inconsistent or varying adjudications,” or “(B)

adjudications . . . that, as a practical matter, would be dispositive of the

interests of the other members not parties to the individual adjudica

tions or would substantially impair or impeded their ability to protect

their interests.” Rule 23(b)(3) states that a class may be maintained

where “questions of law or fact common to class members predominate

over any questions affecting only individual members,” and a class

action would be “superior to other available methods for fairly and

efficiently adjudicating the controversy.” The applicability of these

provisions to the plaintiff class is not before us.

6 WAL-MART STORES, INC. v. DUKES

Opinion of the Court

framework analysis” of Wal-Mart’s “culture” and person

nel practices, and concluded that the company was “vul

nerable” to gender discrimination. 603 F. 3d 571, 601

(CA9 2010) (en banc).

Wal-Mart unsuccessfully moved to strike much of this

evidence. It also offered its own countervailing statistical

and other proof in an effort to defeat Rule 23(a)’s require

ments of commonality, typicality, and adequate represen

tation. 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 injunc

tive and declaratory relief, and second because the back

pay claims could not be manageably tried as a class with

out depriving Wal-Mart of its right to present certain

statutory defenses. With one limitation not relevant here,

the District Court granted respondents’ motion and certi

fied their proposed class.3

D

A divided en banc Court of Appeals substantially af

firmed the District Court’s certification order. 603 F. 3d

571. The majority concluded that respondents’ evidence of

commonality 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 plain

tiffs’ claims were sufficiently typical of the class as a whole

——————

3 The District Court excluded backpay claims based on promotion

opportunities that had not been publicly posted, for the reason that no

applicant data could exist for such positions. 222 F. R. D. 137, 182 (ND

Cal. 2004). It also decided to afford class members notice of the ac

tion and the right to opt-out of the class with respect to respondents’

punitive-damages claim. Id., at 173.

Cite as: 564 U. S. ____ (2011) 7

Opinion of the Court

to satisfy Rule 23(a)(3), and that they could serve as ade

quate class representatives, 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 the nonmonetary

claims. Id., at 616 (internal quotation marks omitted).4

Finally, the Court of Appeals determined that the action

could be manageably tried as a class action because the

District Court could adopt the approach the Ninth Circuit

approved in Hilao v. Estate of Marcos, 103 F. 3d 767, 782–

787 (1996). There compensatory damages for some 9,541

class members were calculated by selecting 137 claims at

random, referring those claims to a special master for

valuation, and then extrapolating the validity and value of

the untested claims from the sample set. See 603 F. 3d, at

625–626. The Court of Appeals “s[aw] no reason why a

similar procedure to that used in Hilao could not be em

ployed in this case.” Id., at 627. It would allow Wal-Mart

“to present individual defenses in the randomly selected

‘sample cases,’ thus revealing the approximate percentage

of class members whose unequal pay or nonpromotion was

due to something other than gender discrimination.”

Ibid., n. 56 (emphasis deleted).

——————

4 To enable that result, the Court of Appeals trimmed the (b)(2) class

in two ways: First, it remanded that part of the certification order

which included respondents’ punitive-damages claim in the (b)(2) class,

so that the District Court might consider whether that might cause the

monetary relief to predominate. 603 F. 3d, at 621. Second, it accepted

in part Wal-Mart’s argument that since class members whom it no

longer employed had no standing to seek injunctive or declaratory

relief, as to them monetary claims must predominate. It excluded from

the certified class “those putative class members who were no longer

Wal-Mart employees at the time Plaintiffs’ complaint was filed,” id., at

623 (emphasis added).

8 WAL-MART STORES, INC. v. DUKES

Opinion of the Court

We granted certiorari. 562 U. S. ___ (2010).

II

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 class 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 litigate. The Rule’s four

requirements—numerosity, commonality, typicality, and

adequate representation—“effectively ‘limit the class

claims to those fairly encompassed by the named plain

tiff ’s claims.’ ” General Telephone Co. of Southwest v.

Falcon, 457 U. S. 147, 156 (1982) (quoting General Tele

phone Co. of Northwest v. EEOC, 446 U. S. 318, 330

(1980)).

A

The crux of this case is commonality—the rule requiring

a plaintiff to show that “there are questions of law or fact

common to the class.” Rule 23(a)(2).5 That language is

——————

5 We have previously stated in this context that “[t]he commonality

and typicality requirements of Rule 23(a) tend to merge. Both serve as

guideposts for determining whether under the particular circumstances

maintenance of a class action is economical and whether the named

plaintiff’s claim and the class claims are so interrelated that the inter

ests of the class members will be fairly and adequately protected in

their absence. Those requirements therefore also tend to merge with

the adequacy-of-representation requirement, although the latter

requirement also raises concerns about the competency of class counsel

and conflicts of interest.” General Telephone Co. of Southwest v. Fal

Cite as: 564 U. S. ____ (2011) 9

Opinion of the Court

easy to misread, since “[a]ny competently crafted class

complaint literally raises common ‘questions.’ ” Nagareda,

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 manag

ers have discretion over pay? Is that an unlawful em

ployment practice? What remedies should we get? Recit

ing these questions is not sufficient to obtain class

certification. Commonality requires the plaintiff to dem

onstrate 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 pro

vision of law. Title VII, for example, can be violated in

many ways—by intentional discrimination, or by hiring

and promotion criteria that result in disparate impact,

and by the use of these practices on the part of many

different superiors in a single company. Quite obviously,

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 ex

ample, 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 valid

ity of each one of the claims in one stroke.

“What matters to class certification . . . is not the rais

ing of common ‘questions’—even in droves—but,

rather the capacity of a classwide proceeding to gen

——————

con, 457 U. S. 147, 157–158, n. 13 (1982). In light of our disposition of

the commonality question, however, it is unnecessary to resolve

whether respondents have satisfied the typicality and adequate

representation requirements of Rule 23(a).

10 WAL-MART STORES, INC. v. DUKES

Opinion of the Court

erate common answers apt to drive the resolution of

the litigation. Dissimilarities within the proposed

class are what have the potential to impede the gen

eration of common answers.” Nagareda, supra, at 132.

Rule 23 does not set forth a mere pleading standard. A

party seeking class certification must affirmatively dem

onstrate his compliance with the Rule—that is, he must be

prepared to prove that there are in fact sufficiently nu

merous parties, common questions of law or fact, etc. We

recognized 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 certification is proper only if “the trial court is satis

fied, after a rigorous analysis, that the prerequisites of

Rule 23(a) have been satisfied,” id., at 161; see id., at 160

(“[A]ctual, not presumed, conformance with Rule 23(a)

remains . . . indispensable”). 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 generally involves considera

tions that are enmeshed in the factual and legal issues

comprising the plaintiff ’s cause of action.’ ” Falcon, supra,

at 160 (quoting Coopers & Lybrand v. Livesay, 437 U. S.

463, 469 (1978); some internal quotation marks omitted).6

——————

6 A statement in one of our prior cases, Eisen v. Carlisle & Jacquelin,

417 U. S. 156, 177 (1974), is sometimes mistakenly cited to the con

trary: “We find nothing in either the language or history of Rule 23 that

gives a court any authority to conduct a preliminary inquiry into the

merits of a suit in order to determine whether it may be maintained as

a class action.” But in that case, the judge had conducted a preliminary

inquiry into the merits of a suit, not in order to determine the propriety

of certification under Rules 23(a) and (b) (he had already done that, see

id., at 165), but in order to shift the cost of notice required by Rule

23(c)(2) from the plaintiff to the defendants. To the extent the quoted

statement goes beyond the permissibility of a merits inquiry for any

other pretrial purpose, it is the purest dictum and is contradicted by

our other cases.

Cite as: 564 U. S. ____ (2011) 11

Opinion of the Court

Nor is there anything unusual about that consequence:

The necessity of touching aspects of the merits in order to

resolve preliminary matters, e.g., jurisdiction and venue,

is a familiar feature of litigation. See Szabo v. Bridgeport

Machines, Inc., 249 F. 3d 672, 676–677 (CA7 2001)

(Easterbrook, J.).

In this case, proof of commonality necessarily overlaps

with respondents’ merits contention that Wal-Mart en

gages in a pattern or practice of discrimination.7 That is so

because, in resolving an individual’s Title VII claim, the

crux of the inquiry is “the reason for a particular employ

ment decision,” Cooper v. Federal Reserve Bank of Rich

mond, 467 U. S. 867, 876 (1984). Here respondents wish

——————

Perhaps the most common example of considering a merits question

at the Rule 23 stage arises in class-action suits for securities fraud.

Rule 23(b)(3)’s requirement that “questions of law or fact common to

class members predominate over any questions affecting only individ

ual members” would often be an insuperable barrier to class certifica

tion, since each of the individual investors would have to prove reliance

on the alleged misrepresentation. But the problem dissipates if the

plaintiffs can establish the applicability of the so-called “fraud on the

market” presumption, which says that all traders who purchase stock

in an efficient market are presumed to have relied on the accuracy of a

company’s public statements. To invoke this presumption, the plain

tiffs seeking 23(b)(3) certification must prove that their shares were

traded on an efficient market, Erica P. John Fund, Inc. v. Halliburton

Co., 563 U. S. ___, ___ (2011) (slip op., at 5), an issue they will surely

have to prove again at trial in order to make out their case on the

merits.

7 In a pattern-or-practice case, the plaintiff tries to “establish by a

preponderance of the evidence that . . . discrimination was the com

pany’s standard operating procedure[,] the regular rather than the

unusual practice.” Teamsters v. United States, 431 U. S. 324, 358

(1977); see also Franks v. Bowman Transp. Co., 424 U. S. 747, 772

(1976). If he succeeds, that showing will support a rebuttable inference

that all class members were victims of the discriminatory practice, and

will justify “an award of prospective relief,” such as “an injunctive order

against the continuation of the discriminatory practice.” Teamsters,

supra, at 361.

12 WAL-MART STORES, INC. v. DUKES

Opinion of the Court

to sue about literally millions of employment decisions at

once. Without some glue holding the alleged reasons for

all those decisions together, it will be impossible to say

that examination of all the class members’ claims for relief

will produce a common answer to the crucial question why

was I disfavored.

B

This Court’s opinion in Falcon describes how the com

monality issue must be approached. There an employee

who claimed that he was deliberately denied a promotion

on account of race obtained certification of a class compris

ing all employees wrongfully denied promotions and all

applicants wrongfully denied jobs. 457 U. S., at 152. We

rejected that composite class for lack of commonality and

typicality, explaining:

“Conceptually, there is a wide gap between (a) an in

dividual’s claim that he has been denied a promotion

[or higher pay] on discriminatory grounds, and his

otherwise unsupported allegation that the company

has a policy of discrimination, and (b) the existence of

a class of persons who have suffered the same injury

as that individual, such that the individual’s claim

and the class claim will share common questions of

law or fact and that the individual’s claim will be typi

cal of the class claims.” Id., at 157–158.

Falcon suggested two ways in which that conceptual gap

might be bridged. First, if the employer “used a biased

testing procedure to evaluate both applicants for employ

ment and incumbent employees, a class action on behalf of

every applicant or employee who might have been preju

diced by the test clearly would satisfy the commonality

and typicality requirements of Rule 23(a).” Id., at 159,

n. 15. Second, “[s]ignificant proof that an employer oper

ated under a general policy of discrimination conceivably

Cite as: 564 U. S. ____ (2011) 13

Opinion of the Court

could justify a class of both applicants and employees

if the discrimination manifested itself in hiring and pro

motion practices in the same general fashion, such as

through entirely subjective decisionmaking processes.”

Ibid. We think that statement precisely describes respon

dents’ burden in this case. The first manner of bridging

the gap obviously has no application here; Wal-Mart has

no testing procedure or other companywide evaluation

method that can be charged with bias. The whole point of

permitting discretionary decisionmaking is to avoid evalu

ating employees under a common standard.

The second manner of bridging the gap requires “signifi

cant proof ” that Wal-Mart “operated under a general

policy of discrimination.” That is entirely absent here.

Wal-Mart’s announced policy forbids sex discrimination,

see App. 1567a–1596a, and as the District Court recog

nized the company imposes penalties for denials of equal

employment opportunity, 222 F. R. D., at 154. The only

evidence of a “general policy of discrimination” respon

dents produced was the testimony of Dr. William Bielby,

their sociological expert. Relying on “social framework”

analysis, Bielby testified 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 regularly stereotypes play a meaning

ful role in employment decisions at Wal-Mart. At his

deposition . . . Dr. Bielby conceded that he could not calcu

late 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 testimony even met the

standards for the admission of expert testimony under

Federal Rule of Evidence 702 and our Daubert case,

see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

14 WAL-MART STORES, INC. v. DUKES

Opinion of the Court

U. S. 579 (1993).8 The District Court concluded that

Daubert did not apply to expert testimony at the certifica

tion 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

stereotyped thinking” is the essential question on which

respondents’ theory of commonality depends. If Bielby

admittedly has no answer to that question, we can safely

disregard what he has to say. It is worlds away from

“significant proof ” that Wal-Mart “operated under a gen

eral policy of discrimination.”

C

The only corporate policy that the plaintiffs’ evidence

convincingly establishes is Wal-Mart’s “policy” of allowing

discretion by local supervisors over employment matters.

On its face, of course, that is just the opposite of a uniform

employment practice that would provide the commonality

needed for a class action; it is a policy against having

uniform employment practices. It is also a very common

——————

8 Bielby’s conclusions in this case have elicited criticism from the very

scholars on whose conclusions he relies for his social-framework analy

sis. See Monahan, Walker, & Mitchell, Contextual Evidence of Gender

Discrimination: The Ascendance of “Social Frameworks,” 94 Va.

L. Rev. 1715, 1747 (2008) (“[Bielby’s] research into conditions and be

havior at Wal-Mart did not meet the standards expected of social

scientific research into stereotyping and discrimination”); id., at 1745,

1747 (“[A] social framework necessarily contains only general state

ments about reliable patterns of relations among variables . . . and goes

no further. . . . Dr. Bielby claimed to present a social framework, but he

testified about social facts specific to Wal-Mart”); id., at 1747–1748

(“Dr. Bielby’s report provides no verifiable method for measuring and

testing any of the variables that were crucial to his conclusions and

reflects nothing more than Dr. Bielby’s ‘expert judgment’ about how

general stereotyping research applied to all managers across all of Wal-

Mart’s stores nationwide for the multi-year class period”).

Cite as: 564 U. S. ____ (2011) 15

Opinion of the Court

and presumptively reasonable way of doing business—one

that we have said “should itself raise no inference of dis

criminatory conduct,” Watson v. Fort Worth Bank & Trust,

487 U. S. 977, 990 (1988).

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

theory—since “an employer’s undisciplined system of

subjective decisionmaking [can have] precisely the same

effects as a system pervaded by impermissible intentional

discrimination.” 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 discretion 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 discrimination—would select sex-neutral,

performance-based criteria for hiring and promotion that

produce no actionable disparity at all. Others may choose to

reward various attributes 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 discrimination that produces a sex

based disparity. In such a company, demonstrating the

invalidity of one manager’s use of discretion will do noth

ing 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.

Respondents have not identified a common mode of exer

cising discretion that pervades the entire company—aside

from their reliance on Dr. Bielby’s social frameworks analy

sis that we have rejected. In a company of Wal-Mart’s size

and geographical scope, it is quite unbelievable that all

managers would exercise their discretion in a common way

16 WAL-MART STORES, INC. v. DUKES

Opinion of the Court

without some common direction. Respondents attempt to

make that showing by means of statistical and anecdotal

evidence, but their evidence falls well short.

The statistical evidence consists primarily of regression

analyses performed by Dr. Richard Drogin, a statistician,

and Dr. Marc Bendick, a labor economist. Drogin con

ducted his analysis region-by-region, comparing the num

ber of women promoted into management positions with

the percentage of women in the available pool of hourly

workers. After considering regional and national data,

Drogin concluded that “there are statistically significant

disparities between men and women at Wal-Mart . . .

[and] these disparities . . . can be explained only by gender

discrimination.” 603 F. 3d, at 604 (internal quotation

marks omitted). Bendick compared work-force data from

Wal-Mart and competitive retailers and concluded that

Wal-Mart “promotes a lower percentage of women than its

competitors.” Ibid.

Even if they are taken at face value, these studies are

insufficient 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 insuffi

cient to infer that “discriminatory treatment is typical of

[the employer’s employment] practices.” 457 U. S., at 158.

A similar failure of inference arises here. As Judge Ikuta

observed in her dissent, “[i]nformation about disparities at

the regional and national level does not establish the

existence of disparities at individual stores, let alone raise

the inference that a company-wide policy of discrimination

is implemented by discretionary decisions at the store and

district level.” 603 F. 3d, at 637. A regional pay disparity,

for example, may be attributable to only a small set of

Wal-Mart stores, and cannot by itself establish the uni

form, store-by-store disparity upon which the plaintiffs’

theory of commonality depends.

There is another, more fundamental, respect in which

Cite as: 564 U. S. ____ (2011) 17

Opinion of the Court

respondents’ statistical proof fails. Even if it established

(as it does not) a pay or promotion pattern that differs

from the nationwide figures or the regional figures in all of

Wal-Mart’s 3,400 stores, that would still not demonstrate

that commonality of issue exists. Some managers will

claim that the availability of women, or qualified women,

or interested women, in their stores’ area does not mirror

the national or regional statistics. And almost all of them

will claim to have been applying some sex-neutral,

performance-based criteria—whose nature and effects

will differ from store to store. In the landmark case of

ours which held that giving discretion to lower-level su

pervisors can be the basis of Title VII liability under a

disparate-impact theory, the plurality opinion conditioned

that holding on the corollary that merely proving that the

discretionary system has produced a racial or sexual

disparity is not enough. “[T]he plaintiff must begin by

identifying the specific employment practice that is chal

lenged.” Watson, 487 U. S., at 994; accord, Wards Cove

Packing Co. v. Atonio, 490 U. S. 642, 656 (1989) (approv

ing that statement), superseded by statute on other

grounds, 42 U. S. C. §2000e–2(k). That is all the more

necessary when a class of plaintiffs is sought to be certi

fied. Other than the bare existence of delegated discre

tion, respondents have identified no “specific employment

practice”—much less one that ties all their 1.5 million

claims together. Merely showing that Wal-Mart’s policy of

discretion has produced an overall sex-based disparity

does not suffice.

Respondents’ anecdotal evidence suffers from the same

defects, and in addition is too weak to raise any inference

that all the individual, discretionary personnel decisions

are discriminatory. In Teamsters v. United States, 431

U. S. 324 (1977), in addition to substantial statistical

evidence of company-wide discrimination, the Government

(as plaintiff) produced about 40 specific accounts of racial

18 WAL-MART STORES, INC. v. DUKES

Opinion of the Court

discrimination from particular individuals. See id., at

338. That number was significant because the company

involved had only 6,472 employees, of whom 571 were

minorities, id., at 337, and the class itself consisted of

around 334 persons, United States v. T.I.M.E.-D. C., Inc.,

517 F. 2d 299, 308 (CA5 1975), overruled on other

grounds, Teamsters, supra. The 40 anecdotes thus repre

sented roughly one account for every eight members of

the class. Moreover, the Court of Appeals noted that the

anecdotes came from individuals “spread throughout” the

company who “for the most part” worked at the company’s

operational centers that employed the largest numbers of

the class members. 517 F. 2d, at 315, and n. 30. Here, by

contrast, respondents filed some 120 affidavits reporting

experiences of discrimination—about 1 for every 12,500

class members—relating to only some 235 out of Wal-

Mart’s 3,400 stores. 603 F. 3d, at 634 (Ikuta, J., dissent

ing). More than half of these reports are concentrated in

only six States (Alabama, California, Florida, Missouri,

Texas, and Wisconsin); half of all States have only one or

two anecdotes; and 14 States have no anecdotes about

Wal-Mart’s operations at all. Id., at 634–635, and n. 10.

Even if every single one of these accounts is true, that

would not demonstrate that the entire company “oper

ate[s] under a general policy of discrimination,” Falcon,

supra, at 159, n. 15, which is what respondents must show

to certify a companywide class.9

The dissent misunderstands the nature of the foregoing

——————

9 The dissent says that we have adopted “a rule that a discrimination

claim, if accompanied by anecdotes, must supply them in numbers

proportionate to the size of the class.” Post, at 5, n. 4 (GINSBURG, J.,

concurring in part and dissenting in part). That is not quite accurate.

A discrimination claimant is free to supply as few anecdotes as he

wishes. But when the claim is that a company operates under a gen

eral policy of discrimination, a few anecdotes selected from literally

millions of employment decisions prove nothing at all.

Cite as: 564 U. S. ____ (2011) 19

Opinion of the Court

analysis. It criticizes our focus on the dissimilarities be

tween the putative class members on the ground that

we have “blend[ed]” Rule 23(a)(2)’s commonality require

ment with Rule 23(b)(3)’s inquiry into whether common

questions “predominate” over individual ones. See post, at

8–10 (GINSBURG, J., concurring in part and dissenting in

part). That is not so. We quite agree that for purposes of

Rule 23(a)(2) “ ‘[e]ven a single [common] question’ ” will do,

post, at 10, n. 9 (quoting Nagareda, The Preexistence

Principle and the Structure of the Class Action, 103

Colum. L. Rev. 149, 176, n. 110 (2003)). We consider

dissimilarities not in order to determine (as Rule 23(b)(3)

requires) whether common questions predominate, but in

order to determine (as Rule 23(a)(2) requires) whether

there is “[e]ven a single [common] question.” And there is

not here. Because respondents provide no convincing

proof of a companywide discriminatory pay and promotion

policy, we have concluded that they have not established

the existence of any common question.10

In sum, we agree with Chief Judge Kozinski that the

members of the class:

“held a multitude of different jobs, at different levels

of Wal-Mart’s hierarchy, for variable lengths of time,

in 3,400 stores, sprinkled across 50 states, with a ka

leidoscope of supervisors (male and female), subject to

a variety of regional policies that all differed. . . .

Some thrived while others did poorly. They have little

in common but their sex and this lawsuit.” 603 F. 3d,

——————

10 For this reason, there is no force to the dissent’s attempt to distin

guish Falcon on the ground that in that case there were “ ‘no common

questions of law or fact’ between the claims of the lead plaintiff and the

applicant class ” post, at 9, n. 7 (quoting Falcon, 457 U. S., at 162

(Burger, C. J., concurring in part and dissenting in part)). Here also

there is nothing to unite all of the plaintiffs’ claims, since (contrary to

the dissent’s contention, post, at 9, n. 7), the same employment prac

tices do not “touch and concern all members of the class.”

20 WAL-MART STORES, INC. v. DUKES

Opinion of the Court

at 652 (dissenting opinion).

III

We also conclude that respondents’ claims for backpay

were improperly certified under Federal Rule of Civil

Procedure 23(b)(2). Our opinion in Ticor Title Ins. Co. v.

Brown, 511 U. S. 117, 121 (1994) (per curiam) expressed

serious doubt about whether claims for monetary relief

may be certified under that provision. We now hold that

they may not, at least where (as here) the monetary relief

is not incidental to the injunctive or declaratory relief.

A

Rule 23(b)(2) allows class treatment when “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.” One possible reading of

this provision is that it applies only to requests for such

injunctive or declaratory 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 remedy 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) applies only when a single injunction

or declaratory judgment would provide relief to each

member of the class. It does not authorize class certifica

tion when each individual class member would be entitled

to a different injunction or declaratory judgment against

the defendant. Similarly, it does not authorize class certi

fication when each class member would be entitled to an

Cite as: 564 U. S. ____ (2011) 21

Opinion of the Court

individualized award of monetary damages.

That interpretation accords with the history of the Rule.

Because Rule 23 “stems from equity practice” that pre

dated its codification, Amchem Products, Inc. v. Windsor,

521 U. S. 591, 613 (1997), in determining its meaning we

have previously looked to the historical models on which

the Rule was based, Ortiz v. Fibreboard Corp., 527 U. S.

815, 841–845 (1999). As we observed in Amchem, “[c]ivil

rights cases against parties charged with unlawful, class

based discrimination are prime examples” of what (b)(2) is

meant to capture. 521 U. S., at 614. In particular, the

Rule reflects a series of decisions involving challenges to

racial segregation—conduct that was remedied by a single

classwide order. In none of the cases cited by the Advisory

Committee as examples of (b)(2)’s antecedents did the

plaintiffs combine any claim for individualized relief with

their classwide injunction. See Advisory Committee’s

Note, 39 F. R. D. 69, 102 (1966) (citing cases); e.g., Potts v.

Flax, 313 F. 2d 284, 289, n. 5 (CA5 1963); Brunson v.

Board of Trustees of Univ. of School Dist. No. 1, Clarendon

Cty., 311 F. 2d 107, 109 (CA4 1962) (per curiam); Frasier

v. Board of Trustees of N.C., 134 F. Supp. 589, 593 (NC

1955) (three-judge court), aff’d, 350 U. S. 979 (1956).

Permitting the combination of individualized and class

wide relief in a (b)(2) class is also inconsistent with the

structure 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 impos

sible or unworkable, as in a (b)(1) class,11 or that the relief

——————

11 Rule 23(b)(1) applies where separate actions by or against individ

ual class members would create a risk of “establish[ing] incompatible

standards of conduct for the party opposing the class,” Rule 23(b)(1)(A),

such as “where the party is obliged by law to treat the members of the

class alike,” Amchem Products, Inc. v. Windsor, 521 U. S. 591, 614

(1997), or where individual adjudications “as a practical matter, would

be dispositive of the interests of the other members not parties to the

22 WAL-MART STORES, INC. v. DUKES

Opinion of the Court

sought must perforce affect the entire class at once, as in a

(b)(2) class. For that reason these are also mandatory

classes: The Rule provides 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 (inter

nal quotation marks omitted), framed for situations “in

which ‘class-action treatment is not as clearly called for’,”

id., at 615 (quoting Advisory Committee’s Notes, 28

U. S. C. App., p. 697 (1994 ed.)). It allows class certifica

tion 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 members pre

dominate over any questions affecting only individual

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 individ

ualized monetary claims belong in Rule 23(b)(3). The

procedural protections attending the (b)(3) class—

predominance, superiority, mandatory notice, and the

right to opt out—are missing from (b)(2) not because the

Rule considers them unnecessary, but because it considers

them unnecessary to a (b)(2) class. When a class seeks an

indivisible injunction benefitting all its members at once,

there is no reason to undertake a case-specific inquiry into

——————

individual adjudications or would substantially impair or impede their

ability to protect their interests,” Rule 23(b)(1)(B), such as in “ ‘limited

fund’ cases, . . . in which numerous persons make claims against a fund

insufficient to satisfy all claims,” Amchem, supra, at 614.

Cite as: 564 U. S. ____ (2011) 23

Opinion of the Court

whether class issues predominate or whether class action

is a superior method of adjudicating the dispute. Pre

dominance 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 addi

tional reason not to read Rule 23(b)(2) to include the

monetary claims here.

B

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

“predominate” over their requests for injunctive and de

claratory 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.” 39 F. R. D., at 102

(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

Advisory Committee’s description of it, that governs. And

a mere negative inference does not in our view suffice to

24 WAL-MART STORES, INC. v. DUKES

Opinion of the Court

establish 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 does nothing to justify elimination of Rule

23(b)(3)’s procedural protections: It neither establishes the

superiority of class adjudication over individual adjudica

tion nor cures the notice and opt-out problems. We fail to

see why the Rule should be read to nullify these protec

tions whenever a plaintiff class, at its option, combines its

monetary claims with a request—even a “predominating

request”—for an injunction.

Respondents’ predominance test, moreover, creates

perverse incentives for class representatives to place at

risk potentially valid claims for monetary relief. In this

case, for example, the named plaintiffs declined to include

employees’ claims for compensatory damages in their

complaint. That strategy of including only backpay claims

made it more likely that monetary relief would not “pre

dominate.” But it also created the possibility (if the pre

dominance test were correct) that individual class mem

bers’ compensatory-damages claims would be precluded by

litigation they had no power to hold themselves apart

from. If it were determined, for example, that a particular

class member is not entitled to backpay because her denial

of increased pay or a promotion was not the product of

discrimination, that employee might be collaterally es

topped from independently seeking compensatory dam

ages based on that same denial. That possibility under

scores the need for plaintiffs with individual monetary

claims to decide for themselves whether to tie their fates to

the class representatives’ or go it alone—a choice Rule

23(b)(2) does not ensure that they have.

The predominance test would also require the District

Court to reevaluate the roster of class members continu

ally. The Ninth Circuit recognized the necessity for this

when it concluded that those plaintiffs no longer employed

Cite as: 564 U. S. ____ (2011) 25

Opinion of the Court

by Wal-Mart lack standing to seek injunctive or declara

tory relief against its employment practices. The Court of

Appeals’ response 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 the complaint was filed. That solution

has no logical connection 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 consequence, even though the valid

ity of a (b)(2) class depends on whether “final injunctive

relief or corresponding declaratory 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 declara

tory relief at all. Of course, the alternative (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 litigate a plain

tiff ’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

imposed but that the backpay claims should not be certi

fied under Rule 23(b)(2) at all.

Finally, respondents argue that their backpay claims

are appropriate for a (b)(2) class action because a backpay

award is equitable in nature. The latter may be true, but

it is irrelevant. The Rule does not speak of “equitable”

remedies generally but of injunctions and declaratory

judgments. As Title VII itself makes pellucidly clear,

backpay is neither. See 42 U. S. C. §2000e–5(g)(2)(B)(i)

and (ii) (distinguishing between declaratory and injunc

tive relief and the payment of “backpay,” see §2000e–

26 WAL-MART STORES, INC. v. DUKES

Opinion of the Court

5(g)(2)(A)).

C

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 “inciden

tal to requested injunctive or declaratory relief,” which it

defined as “damages that flow directly from liability to

the class as a whole on the claims forming the basis of the

injunctive or declaratory relief.” In that court’s view, such

“incidental damage should not require additional hearings

to resolve the disparate merits of each individual’s case; it

should neither introduce new 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 consis

tent 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 stan

dard, and in any event they cannot.

Contrary to the Ninth Circuit’s view, Wal-Mart is enti

tled to individualized determinations of each employee’s

eligibility for backpay. Title VII includes a detailed reme

dial scheme. If a plaintiff prevails in showing that an

employer has discriminated against him in violation of the

statute, the court “may enjoin the respondent from en

gaging in such unlawful employment practice, and order

such affirmative action as may be appropriate, [including]

reinstatement or hiring of employees, with or without

backpay . . . or any other equitable relief as the court

deems appropriate.” §2000e–5(g)(1). But if the employer

can show that it took an adverse employment action

against an employee for any reason other than discrimina

tion, the court cannot order the “hiring, reinstatement, or

promotion of an individual as an employee, or the payment

to him of any backpay.” §2000e–5(g)(2)(A).

Cite as: 564 U. S. ____ (2011) 27

Opinion of the Court

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

conduct 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

will have the right to raise any individual affirmative

defenses it may have, and to “demonstrate that the indi

vidual applicant was denied an employment opportunity

for lawful reasons.” Id., at 362.

The Court of Appeals believed that it was possible to

replace such proceedings with Trial by Formula. A sample

set of the class members would be selected, as to whom

liability for sex discrimination and the backpay owing as a

result would be determined in depositions supervised by a

master. The percentage of claims determined to be valid

would then be applied to the entire remaining class, and

the number of (presumptively) valid claims thus derived

would be multiplied by the average backpay award in the

sample set to arrive at the entire class recovery—without

further individualized proceedings. 603 F. 3d, at 625–627.

We disapprove that novel project. Because the Rules

Enabling Act forbids interpreting Rule 23 to “abridge,

enlarge or modify any substantive right,” 28 U. S. C.

§2072(b); see Ortiz, 527 U. S., at 845, a class cannot be

certified on the premise that Wal-Mart will not be entitled

to litigate its statutory defenses to individual claims. And

because the necessity of that litigation will prevent back

pay from being “incidental” to the classwide injunction,

respondents’ class could not be certified even assuming,

arguendo, that “incidental” monetary relief can be

awarded to a 23(b)(2) class.

* * *

The judgment of the Court of Appeals is

Reversed.

Cite as: 564 U. S. ____ (2011) 1

Opinion of GINSBURG, J.

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–277

_________________

WAL-MART STORES, INC., PETITIONER v.

BETTY DUKES ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 20, 2011]

JUSTICE GINSBURG, with whom JUSTICE BREYER,

JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, concurring

in part and dissenting in part.

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 viola

tion of Title VII, 42 U. S. C. §2000e et seq., seek monetary

relief that is not merely incidental to any injunctive or

declaratory relief that might be available. See ante, at 20–

27. A putative class of this type may be certifiable under

Rule 23(b)(3), if the plaintiffs show that common class ques-

tions “predominate” over issues affecting individuals—

e.g., qualification for, and the amount of, backpay or com

pensatory damages—and that a class action is “superior”

to other modes of adjudication.

Whether the class the plaintiffs describe meets the

specific requirements of Rule 23(b)(3) is not before the

Court, and I would reserve that matter for consideration

and decision on remand.1 The Court, however, disqualifies

the class at the starting gate, holding that the plaintiffs

cannot cross the “commonality” line set by Rule 23(a)(2).

——————

1 The plaintiffs requested Rule 23(b)(3) certification as an alternative,

should their request for (b)(2) certification fail. Plaintiffs’ Motion for

Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 47.

2 WAL-MART STORES, INC. v. DUKES

Opinion of GINSBURG, J.

In so ruling, the Court imports into the Rule 23(a) de

termination concerns properly addressed in a Rule 23(b)(3)

assessment.

I

A

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

common,” 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 re

quirement,” 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).

A “question” is ordinarily understood to be “[a] subject

or point open to controversy.” American Heritage Diction

ary 1483 (3d ed. 1992). See also Black’s Law Dictionary

1366 (9th ed. 2009) (defining “question of fact” as “[a]

disputed issue to be resolved . . . [at] trial” and “question of

law” as “[a]n issue to be decided by the judge”). Thus, a

“question” “common to the class” must be a dispute, either

——————

2 Rule 23(a) lists three other threshold requirements for class-action

certification: “(1) the class is so numerous that joinder of all members is

impracticable”; “(3) the claims or defenses of the representative parties

are typical of the claims or defenses of the class; and (4) the representa

tive parties will fairly and adequately protect the interests of the class.”

The numerosity requirement is clearly met and Wal-Mart does not

contend otherwise. As the Court does not reach the typicality and

adequacy requirements, ante, at 9, n. 5, I will not discuss them either,

but will simply record my agreement with the District Court’s resolu

tion of those issues.

Cite as: 564 U. S. ____ (2011) 3

Opinion of GINSBURG, J.

of fact or of law, the resolution of which will advance the

determination of the class members’ claims.3

B

The District Court, recognizing that “one significant is

sue common to the class may be sufficient to warrant cer

tification,” 222 F. R. D. 137, 145 (ND Cal. 2004), found

that the plaintiffs easily met that test. Absent an error of

law or an abuse of discretion, an appellate tribunal has no

warrant to upset the District Court’s finding of commonal

ity. See Califano v. Yamasaki, 442 U. S. 682, 703 (1979)

(“[M]ost issues arising under Rule 23 . . . [are] committed

in the first instance to the discretion of the district

court.”).

The District Court certified a class of “[a]ll women em

ployed at any Wal-Mart domestic retail store at any time

since December 26, 1998.” 222 F. R. D., at 141–143 (in

ternal quotation marks omitted). The named plaintiffs,

led by Betty Dukes, propose to litigate, on behalf of the

class, allegations that Wal-Mart discriminates on the basis

of gender in pay and promotions. They allege that the

company “[r]eli[es] on gender stereotypes in making em

ployment decisions such as . . . promotion[s] [and] pay.”

App. 55a. Wal-Mart permits those prejudices to infect

personnel decisions, the plaintiffs contend, by leaving pay

and promotions in the hands of “a nearly all male manage

rial workforce” using “arbitrary and subjective criteria.”

Ibid. Further alleged barriers to the advancement of

female employees include the company’s requirement, “as

a condition of promotion to management jobs, that em

——————

3 The Court suggests Rule 23(a)(2) must mean more than it says. See

ante, at 8–10. If the word “questions” were taken literally, the majority

asserts, plaintiffs could pass the Rule 23(a)(2) bar by “[r]eciting . . .

questions” like “Do all of us plaintiffs indeed work for Wal-Mart?” Ante,

at 9. Sensibly read, however, the word “questions” means disputed

issues, not any utterance crafted in the grammatical form of a question.

4 WAL-MART STORES, INC. v. DUKES

Opinion of GINSBURG, J.

ployees be willing to relocate.” Id., at 56a. Absent in

struction otherwise, there is a risk that managers will act

on the familiar assumption that women, because of their

services to husband and children, are less mobile than

men. See Dept. of Labor, Federal Glass Ceiling Commis

sion, Good for Business: Making Full Use of the Nation’s

Human Capital 151 (1995).

Women fill 70 percent of the hourly jobs in the retailer’s

stores but make up only “33 percent of management em

ployees.” 222 F. R. D., at 146. “[T]he higher one looks in

the organization the lower the percentage of women.” Id.,

at 155. The plaintiffs’ “largely uncontested descriptive

statistics” also show that women working in the company’s

stores “are paid less than men in every region” and “that

the salary gap widens over time even for men and women

hired into the same jobs at the same time.” Ibid.; cf.

Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S. 618,

643 (2007) (GINSBURG, J., dissenting).

The District Court identified “systems for . . . promoting

in-store employees” that were “sufficiently similar across

regions and stores” to conclude that “the manner in which

these systems affect the class raises issues that are com

mon to all class members.” 222 F. R. D., at 149. The

selection of employees for promotion to in-store manage

ment “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, managers choose whom to promote on the

basis of their own subjective impressions. Ibid.

Wal-Mart’s compensation policies also operate uniformly

across stores, the District Court found. The retailer leaves

open a $2 band for every position’s hourly pay rate. Wal-

Mart provides no standards or criteria for setting wages

within that band, and thus does nothing to counter uncon

scious bias on the part of supervisors. See id., at 146–147.

Cite as: 564 U. S. ____ (2011) 5

Opinion of GINSBURG, J.

Wal-Mart’s supervisors do not make their discretion

ary decisions in a vacuum. The District Court reviewed

means Wal-Mart used to maintain a “carefully constructed

. . . corporate culture,” such as frequent meetings to re-

inforce the common way of thinking, regular transfers of

managers between stores to ensure uniformity through

out the company, monitoring of stores “on a close and con

stant basis,” and “Wal-Mart TV,” “broadcas[t] . . . into

all stores.” Id., at 151–153 (internal quotation marks

omitted).

The plaintiffs’ evidence, including class members’ tales

of their own experiences,4 suggests that gender bias suf

fused Wal-Mart’s company culture. Among illustrations,

senior management often refer to female associates as

“little Janie Qs.” Plaintiffs’ Motion for Class Certification

in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 13 (in

ternal 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 execu

tives concluded that “[s]tereotypes limit the opportunities

offered to women.” Plaintiffs’ Motion for Class Certifica

tion in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, at 16

(internal quotation marks omitted).

Finally, the plaintiffs presented an expert’s appraisal to

show that the pay and promotions disparities at Wal-Mart

“can be explained only by gender discrimination and not

by . . . neutral variables.” 222 F. R. D., at 155. Using

regression analyses, their expert, Richard Drogin, con

——————

4 The majority purports to derive from Teamsters v. United States,

431 U. S. 324 (1977), a rule that a discrimination claim, if accompanied

by anecdotes, must supply them in numbers proportionate to the size of

the class. Ante, at 17–18. Teamsters, the Court acknowledges, see

ante, at 18, n. 9, instructs that statistical evidence alone may suffice,

431 U. S., at 339; that decision can hardly be said to establish a nu

merical floor before anecdotal evidence can be taken into account.

6 WAL-MART STORES, INC. v. DUKES

Opinion of GINSBURG, J.

trolled for factors including, inter alia, job performance,

length of time with the company, and the store where an

employee worked. Id., at 159.5 The results, the District

Court found, were sufficient to raise an “inference of dis

crimination.” Id., at 155–160.

C

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 prac

tice of delegating to supervisors large discretion to make

personnel decisions, uncontrolled by formal standards, has

long been known to have the potential to produce dispa

rate effects. Managers, like all humankind, may be prey

to biases of which they are unaware.6 The risk of dis

crimination is heightened when those managers are pre

dominantly of one sex, and are steeped in a corporate

culture that perpetuates gender stereotypes.

The plaintiffs’ allegations resemble those in one of the

——————

5 The Court asserts that Drogin showed only average differences at

the “regional and national level” between male and female employees.

Ante, at 16 (internal quotation marks omitted). In fact, his regression

analyses showed there were disparities within stores. The majority’s

contention to the contrary reflects only an arcane disagreement about

statistical method—which the District Court resolved in the plaintiffs’

favor. 222 F. R. D. 137, 157 (ND Cal. 2004). Appellate review is no

occasion to disturb a trial court’s handling of factual disputes of this

order.

6 An example vividly illustrates how subjective decisionmaking can be

a vehicle for discrimination. Performing in symphony orchestras was

long a male preserve. Goldin and Rouse, Orchestrating Impartiality:

The Impact of “Blind” Auditions on Female Musicians, 90 Am. Econ.

Rev. 715, 715–716 (2000). In the 1970’s orchestras began hiring musi

cians through auditions open to all comers. Id., at 716. Reviewers were

to judge applicants solely on their musical abilities, yet subconscious

bias led some reviewers to disfavor women. Orchestras that permitted

reviewers to see the applicants hired far fewer female musicians than

orchestras that conducted blind auditions, in which candidates played

behind opaque screens. Id., at 738.

Cite as: 564 U. S. ____ (2011) 7

Opinion of GINSBURG, J.

prototypical cases in this area, Leisner v. New York Tel.

Co., 358 F. Supp. 359, 364–365 (SDNY 1973). In deciding

on promotions, supervisors in that case were to start with

objective measures; but ultimately, they were to “look at

the individual as a total individual.” Id., at 365 (internal

quotation marks omitted). The final question they were to

ask and answer: “Is this person going to be successful in

our business?” Ibid. (internal quotation marks omitted).

It is hardly surprising that for many managers, the ideal

candidate was someone with characteristics similar to

their own.

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 17 (“[P]roving that [a] discretionary system

has produced a . . . disparity is not enough.”). In Watson,

as here, an employer had given its managers large author

ity over promotions. An employee sued the bank under

Title VII, alleging that the “discretionary promotion sys

tem” caused a discriminatory effect based on race. 487

U. S., at 984 (internal quotation marks omitted). Four

different supervisors 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 precise and formal criteria for evaluating

candidates”; “[i]t relied instead on the subjective judgment

of supervisors.” Ibid.

Aware of “the problem of subconscious stereotypes and

prejudices,” we held that the employer’s “undisciplined

system of subjective decisionmaking” was an “employment

practic[e]” that “may be analyzed under the disparate

impact approach.” Id., at 990–991. See also Wards Cove

Packing Co. v. Atonio, 490 U. S. 642, 657 (1989) (recogniz

ing “the use of ‘subjective decision making’ ” as an “em

8 WAL-MART STORES, INC. v. DUKES

Opinion of GINSBURG, J.

ployment practic[e]” subject to disparate-impact attack).

The plaintiffs’ allegations state claims of gender dis

crimination in the form of biased decisionmaking in both

pay and promotions. The evidence reviewed by the Dis

trict Court adequately demonstrated that resolving those

claims would necessitate examination of particular poli

cies and practices alleged to affect, adversely and globally,

women employed at Wal-Mart’s stores. Rule 23(a)(2),

setting a necessary but not a sufficient criterion for class

action certification, demands nothing further.

II

A

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 9 (“Re-

citing” questions like “Is [giving managers discretion over

pay] an unlawful employment practice?” “is not suffi-

cient to obtain class certification.”). “What matters,” the

Court asserts, “is not the raising of common ‘questions,’ ”

but whether there are “[d]issimilarities within the pro

posed class” that “have the potential to impede the genera

tion of common answers.” Ante, at 9–10 (quoting Na

gareda, Class Certification in the Age of Aggregate Proof,

84 N. Y. U. L. Rev. 97, 132 (2009); some internal quotation

marks omitted).

The Court blends Rule 23(a)(2)’s threshold criterion

with the more demanding criteria of Rule 23(b)(3), and

thereby elevates the (a)(2) inquiry so that it is no longer

“easily satisfied,” 5 J. Moore et al., Moore’s Federal Prac

tice §23.23[2], p. 23–72 (3d ed. 2011).7 Rule 23(b)(3) certi

——————

7 The Court places considerable weight on General Telephone Co. of

Southwest v. Falcon, 457 U. S. 147 (1982). Ante, at 12–13. That case

has little relevance to the question before the Court today. The lead

plaintiff in Falcon alleged discrimination evidenced by the company’s

failure to promote him and other Mexican-American employees and

Cite as: 564 U. S. ____ (2011) 9

Opinion of GINSBURG, J.

fication requires, in addition to the four 23(a) findings, de

terminations that “questions of law or fact common to

class members predominate over any questions affecting

only individual members” and that “a class action is supe

rior to other available methods for . . . adjudicating the

controversy.”8

The Court’s emphasis on differences between class

members mimics the Rule 23(b)(3) inquiry into whether

common questions “predominate” over individual issues.

And by asking whether the individual differences “impede”

common adjudication, ante, at 10 (internal quotation

marks omitted), the Court duplicates 23(b)(3)’s question

whether “a class action is superior” to other modes of

adjudication. Indeed, Professor Nagareda, whose “dissimi

——————

failure to hire Mexican-American applicants. There were “no common

questions of law or fact” between the claims of the lead plaintiff and the

applicant class. 457 U. S., at 162 (Burger, C. J., concurring in part and

dissenting in part) (emphasis added). The plaintiff-employee alleged

that the defendant-employer had discriminated against him intention

ally. The applicant class claims, by contrast, were “advanced under the

‘adverse impact’ theory,” ibid., appropriate for facially neutral prac

tices. “[T]he only commonality [wa]s that respondent is a Mexican-

American and he seeks to represent a class of Mexican-Americans.”

Ibid. Here the same practices touch and concern all members of the

class.

8 “A class action may be maintained if Rule 23(a) is satisfied and if:

“(1) prosecuting separate actions by or against individual class mem

bers would create a risk of . . . inconsistent or varying adjudications . . .

[or] adjudications with respect to individual class members that, as a

practical matter, would be dispositive of the interests of the other

members . . . ;

“(2) the party opposing the class has acted or refused to act on

grounds that apply generally to the class, so that final injunctive relief

. . . is appropriate respecting the class as a whole; or

“(3) the court finds that the questions of law or fact common to class

members predominate over any questions affecting only individual

members, and that a class action is superior to other available methods

for fairly and efficiently adjudicating the controversy.” Fed. Rule Civ.

Proc. 23(b) (paragraph breaks added).

10 WAL-MART STORES, INC. v. DUKES

Opinion of GINSBURG, J.

larities” inquiry the Court endorses, developed his position

in the context of Rule 23(b)(3). See 84 N. Y. U. L. Rev.,

at 131 (Rule 23(b)(3) requires “some decisive degree of

similarity across the proposed class” because it “speaks

of common ‘questions’ that ‘predominate’ over individual

ones”).9 “The Rule 23(b)(3) predominance inquiry” is

meant to “tes[t] whether proposed classes are sufficiently

cohesive to warrant adjudication by representation.”

Amchem Products, Inc. v. Windsor, 521 U. S. 591, 623

(1997). If courts must conduct a “dissimilarities” analysis

at the Rule 23(a)(2) stage, no mission remains for Rule

23(b)(3).

Because Rule 23(a) is also a prerequisite for Rule

23(b)(1) and Rule 23(b)(2) classes, the Court’s “dissimilari

ties” position 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 Amchem

Products, 521 U. S., 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 back

ground of each claim will affect the outcome of the legal

issue”). 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

recognized that the “qualification[s] and performance” of

individual class members might vary. Id., at 772 (internal

quotation marks omitted). “Generalizations concerning

such individually applicable evidence,” we cautioned,

“cannot serve as a justification for the denial of [injunc

——————

9 Cf.supra, at 2 (Rule 23(a) commonality prerequisite satisfied by

“[e]ven a single question . . . common to the members of the class”

(quoting Nagareda, The Preexistence Principle and the Structure of the

Class Action, 103 Colum. L. Rev. 149, 176, n. 110 (2003)).

Cite as: 564 U. S. ____ (2011) 11

Opinion of GINSBURG, J.

tive] relief to the entire class.” Ibid.

B

The “dissimilarities” approach leads the Court to train

its attention on what distinguishes individual class mem

bers, rather than on what unites them. Given the lack of

standards for pay and promotions, the majority says,

“demonstrating the invalidity of one manager’s use of

discretion will do nothing to demonstrate the invalidity of

another’s.” Ante, at 15.

Wal-Mart’s delegation of discretion over pay and promo

tions is a policy uniform throughout all stores. The very

nature of discretion is that people will exercise it in vari

ous ways. A system of delegated discretion, Watson held,

is a practice actionable under Title VII when it produces

discriminatory outcomes. 487 U. S., at 990–991; see su

pra, at 7–8. A finding that Wal-Mart’s pay and promo

tions practices in fact violate the law would be the first

step in the usual order of proof for plaintiffs seeking indi

vidual remedies for company-wide discrimination. Team

sters v. United States, 431 U. S. 324, 359 (1977); see Albe

marle Paper Co. v. Moody, 422 U. S. 405, 415–423 (1975).

That each individual employee’s unique circumstances will

ultimately determine whether she is entitled to backpay or

damages, §2000e–5(g)(2)(A) (barring backpay if a plaintiff

“was refused . . . advancement . . . for any reason other

than discrimination”), should not factor into the Rule

23(a)(2) determination.

* * *

The Court errs in importing a “dissimilarities” notion

suited to Rule 23(b)(3) into the Rule 23(a) commonality

inquiry. I therefore cannot join Part II of the Court’s

opinion.