In a much anticipated 5-4 opinion, the United States Supreme Court yesterday reversed the decision of the U.S. Court of Appeals for the Ninth Circuit and determined that the female plaintiffs who had sued Wal-Mart, alleging that they had been discriminated against in both pay and promotions over the years, could not bring their case via a class action. That class, which would have numbered 1.5 million potential plaintiffs, represented all women who had worked for Wal-Mart since 1998. (Wal-Mart Stores Inc. v. Dukes, Case No. 10-277)

Justice Scalia noted in his majority opinion that the women "wish to sue about literally millions of employment decisions at once ... . Without some glue holding the alleged reasons for all of 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?'"

The court made no determination as to whether any plaintiff was the victim of discrimination. Rather, it found that the statistical evidence and the testimony of 120 female workers was not enough to show that the requirements for class certification under Federal Rule 23, which states that there must be questions of law and fact that are common to the entire class, had been satisfied. It is likely that individual plaintiffs and/or smaller classes of women will continue to pursue Wal-Mart, and that similar cases against large employers will be more difficult to bring via a class action unless it can be proven that the alleged discrimination is common to all members of the potential class.