OPINION OF THE COURT WAL-MART STORES, INC. V. DUKES 564 U. S. ____ (2011) 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 declaratory 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 throughout the country: Discount Stores, Supercenters,
Neighborhood 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 40 and 53
separate departments and 80 to 500 staff positions. 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
increase the wages of hourly employees (within limits) with only
limited corporate oversight. As for salaried employees, 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
permits 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
manager, 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 current 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 amended, 42
U. S. C. §2000e–1 et seq.[ Footnote 1 ] Betty Dukes began
working at a Pittsburgh, California, Wal-Mart in 1994. She started
as a cashier, but later sought and received a promotion to customer
service manager. 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 infractions. Dukes also claims two male
greeters in the Pittsburgh 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 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
managers’ authority amounts to disparate treatment, see
§2000e–2(a). Their complaint seeks injunctive and declaratory
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 making every woman at the
company the victim of one common 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 certification 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 parties are typical of the claims or defenses of the
class, and

															   “(4) the representative parties will fairly
and adequately protect the interests of the class” (paragraph
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.”[ Footnote 2 ]

															   Invoking these provisions, respondents moved
the District 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 management 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 “questions 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
framework analysis” of Wal-Mart’s “culture” and personnel
practices, and concluded that the company was “vulnerable” 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
requirements of 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
declaratory 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 respondents’ motion
and certified their proposed class.[ Footnote 3 ]

															D

															   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 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 plaintiffs’ claims were sufficiently
typical of the class as a whole to satisfy Rule 23(a)(3), and that
they could serve as adequate 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).[ Footnote 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 employed 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).

															   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
plaintiff ’s claims.’ ” General Telephone Co. of
Southwest v. Falcon , 457 U. S. 147 , 156 (1982) (quoting General Telephone 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).[ Footnote 5 ] That
language is 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
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. Commonality 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 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 example, 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.

															“What matters to class certification … is not the
raising of common ‘questions’—even in droves—but, rather the
capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.
Dissimilarities within the proposed class are what have the
potential to impede the generation of common answers.” Nagareda, supra , at 132.

															   Rule 23 does not set forth a mere
pleading standard. A party seeking class certification must
affirmatively demonstrate his compliance with the Rule—that is, he
must be prepared to prove that there are in fact sufficiently numerous 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 satisfied,
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 considerations 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).[ Footnote 6 ] 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 engages
in a pattern or practice of discrimination.[ Footnote 7 ] That is so because, in resolving
an individual’s Title VII claim, the crux of the inquiry is “the
reason for a particular employment decision,” Cooper v. Federal Reserve Bank of Richmond , 467 U. S. 867 , 876
(1984). Here respondents wish 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 commonality 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 comprising 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
individual’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 typical 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 employment
and incumbent employees, a class action on behalf of every
applicant or employee who might have been prejudiced 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 operated under a general
policy of discrimination conceivably could justify a class of both
applicants and employees if the discrimination manifested itself in
hiring and promotion practices in the same general fashion, such as
through entirely subjective decisionmaking processes.” Ibid. We think that statement precisely describes
respondents’ 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 evaluating employees under a common
standard.

															   The second manner of bridging the gap requires
“significant 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 recognized 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” respondents 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
meaningful role in employment decisions at Wal-Mart. At his
deposition … Dr. Bielby conceded 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 testimony even met the standards for the admission
of expert testimony under Federal Rule of Civil Procedure 702 and
our Daubert case, see Daubert v. Merrell Dow
Pharmaceuticals, Inc. , 509 U. S. 579 (1993).[ Footnote 8 ] The
District Court concluded that Daubert did not apply to
expert testimony at the certification 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 employment 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 general 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 and presumptively reasonable way of doing
business—one that we have said “should itself raise no inference of
discriminatory 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 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.

															   Respondents have not identified a common mode
of exercising discretion that pervades the entire company—aside
from their reliance on Dr. Bielby’s social frameworks analysis 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 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
conducted his analysis region-by-region, comparing the number 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
insufficient 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 uniform, store-by-store disparity upon which
the plaintiffs’ theory of commonality depends.

															   There is another, more fundamental, respect in
which 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 supervisors
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 challenged.” Watson , 487 U. S., at 994;
accord, Wards Cove Packing Co. v. Atonio , 490 U. S. 642 ,
656 (1989) (approving 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 certified.
Other than the bare existence of delegated discretion, 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 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 represented 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., dissenting). 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
“operate[s] under a general policy of discrimination,” Falcon , supra , at 159, n. 15, which is what
respondents must show to certify a companywide class.[ Footnote 9 ]

															   The dissent misunderstands the nature of the
foregoing 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 requirement 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.[ Footnote 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 kaleidoscope 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, 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 certification
when each individual class member would be entitled to a different injunction or declaratory judgment against the
defendant. Similarly, it does not authorize class certification
when each class member would be entitled to an individualized award
of monetary damages.

															   That interpretation accords with
the history of the Rule. Because Rule 23 “stems from equity
practice” that predated 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 classwide 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 impossible or
unworkable, as in a (b)(1) class,[ Footnote 11 ] or that the relief 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 (internal 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 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 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.” 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 whether class issues predominate or whether class
action is a superior method of adjudicating the 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) requires 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.

															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
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.” 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 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 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 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 “predominate.” But it also created the
possibility (if the predominance test were correct) that individual
class members’ 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 estopped
from independently seeking compensatory damages based on that same
denial. That possibility underscores 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
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’ 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 validity 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 declaratory 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 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 imposed but that the backpay claims should not
be certified 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–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 “incidental 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 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.

															   Contrary to the Ninth Circuit’s
view, Wal-Mart is entitled to individualized determinations of each
employee’s eligibility for backpay. Title VII includes a detailed
remedial 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 discrimination, 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).

															   We have established a procedure for trying
pattern-or-practice cases that gives effect to these statutory
requirements. 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 individual 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 backpay 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. Footnote 1 The complaint included seven named
plaintiffs, but only three remain part of the certified class as
narrowed by the Court of Appeals. Footnote 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 adjudications 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. Footnote 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. Footnote 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). Footnote 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 interests 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. Falcon , 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). Footnote 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 contrary: “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.

															   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 individual members” would often be an
insuperable barrier to class certification, 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
plaintiffs 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. Footnote 7 In a pattern-or-practice case, the plaintiff
tries to “establish by a preponderance of the evidence that …
discrimination was the company’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. Footnote 8 Bielby’s conclusions in this case have
elicited criticism from the very scholars on whose conclusions he
relies for his social-framework analysis. 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
statements 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”). Footnote 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
general policy of discrimination, a few anecdotes selected from
literally millions of employment decisions prove nothing at
all. Footnote 10 For this reason, there is no force to the
dissent’s attempt to distinguish 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 practices do not “touch and concern all members of the
class.” Footnote 11 Rule 23(b)(1) applies where separate actions
by or against individual 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 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. OPINION OF GINSBURG, J. WAL-MART STORES, INC. V. DUKES 564 U. S. ____ (2011) 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 violation 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 compensatory 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.[ Footnote 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). 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.”[ Footnote 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 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).

															   A “question” is ordinarily
understood to be “[a] subject or point open to controversy.”
American Heritage Dictionary 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 of fact
or of law, the resolution of which will advance the determination
of the class members’ claims.[ Footnote 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
commonality. 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 employed at any Wal-Mart domestic retail
store at any time since December 26, 1998.” 222 F. R. D.,
at 141–143 (internal 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 employment 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
managerial 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 employees be willing to
relocate.” Id ., at 56a. Absent instruction 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
Commission, 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
employees.” 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 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, 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 unconscious bias on the
part of supervisors. See id ., at 146–147.

															   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,[ Footnote 4 ] suggests that gender bias suffused
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 (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’ Motion for Class Certification 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, controlled for
factors including, inter alia , job performance, length of
time with the company, and the store where an employee worked. Id ., at 159.[ Footnote
5 ] The results, the District Court found, were sufficient to
raise an “inference of discrimination.” 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 practice of delegating to supervisors large
discretion to make personnel decisions, uncontrolled by formal
standards, has long been known to have the potential to produce
disparate effects. Managers, like all humankind, may be prey to
biases of which they are unaware.[ Footnote 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.

															   The plaintiffs’ allegations
resemble those in one of the 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
practices 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 authority over promotions. An employee sued the
bank under Title VII, alleging that the “discretionary promotion
system” 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) (recognizing “the use of ‘subjective decision making’ ”
as an “employment practic[e]” subject to disparate-impact
attack).

															   The plaintiffs’ allegations state claims of
gender discrimination in the form of biased decisionmaking in both
pay and promotions. The evidence reviewed by the District Court
adequately demonstrated that resolving those claims would
necessitate examination of particular policies 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 proposed class” that “have the potential to impede the
generation of common answers.” Ante , at 9–10 (quoting
Nagareda, 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
Practice §23.23[2], p. 23–72 (3d ed. 2011).[ Footnote 7 ] Rule 23(b)(3) certification 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 superior to other available methods for … adjudicating
the controversy.”[ Footnote
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
“dissimilarities” 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”).[ Footnote 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
“dissimilarities” 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 background 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 [injunctive]
relief to the entire class.” Ibid .

															B

															   The “dissimilarities” approach
leads the Court to train its attention on what distinguishes
individual class members, 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 promotions is a policy uniform throughout
all stores. The very nature of discretion is that people will
exercise it in various 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 supra , at 7–8. A finding that Wal-Mart’s pay and
promotions practices in fact violate the law would be the first
step in the usual order of proof for plaintiffs seeking individual
remedies for company-wide discrimination. Teamsters v. United States , 431 U. S. 324 , 359 (1977); see Albemarle 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. Footnote 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. Footnote 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 representative 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 resolution of those issues. Footnote 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. Footnote 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.em>., at 339; that decision
can hardly be said to establish a numerical floor before anecdotal
evidence can be taken into account. Footnote 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. Footnote 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 musicians 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. Footnote 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
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 intentionally. The
applicant class claims, by contrast, were “advanced under the
‘adverse impact’ theory,” ibid ., appropriate for facially
neutral practices. “[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. Footnote 8 “A class action may be maintained if Rule
23(a) is satisfied and if:

															“(1) prosecuting separate actions by or against individual class
members 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). Footnote 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)).

Summary:
In *Wal-Mart Stores, Inc. v. Dukes*, the Supreme Court considered whether the certification of a plaintiff class of approximately one and a half million current and former female employees of Wal-Mart was consistent with Federal Rules of Civil Procedure 23(a) and (b)(2). The plaintiffs alleged that Wal-Mart's policy of giving local managers discretion over pay and promotions resulted in discrimination against women.

The Court held that the class did not meet the commonality requirement of Rule 23(a), as the plaintiffs' claims involved individualized issues of discrimination that could not be resolved on a class-wide basis. The Court also found that the class did not meet the typicality and adequacy requirements of Rule 23(a), as the named plaintiffs' claims were not representative of the class as a whole.

Additionally, the Court held that the class did not satisfy Rule 23(b)(2), as the plaintiffs' primary goal was to obtain monetary relief in the form of backpay, rather than injunctive or declaratory relief. The Court concluded that the class action was not an appropriate vehicle for resolving the plaintiffs' claims and reversed the lower court's decision.