Joseph M. Sellers

At the Supreme Court on March 29, 2011, Chief Justice John Roberts asked Joseph M. Sellers whether Wal-Mart’s scale made subjective employment decisions necessarily illegal. “No, not at all, Mr. Chief Justice,” Sellers replied. He was challenging particular features of the company’s pay and promotion process: decisions made without job-related guidance, under the same grant of authority across thousands of stores.

Justice Anthony Kennedy pressed the apparent tension between a powerful headquarters and decisions left to local managers. Sellers answered by narrowing the point: “we’re not attacking every facet of the pay and promotion decisions.” The district court had identified specific choices left entirely to managerial judgment. The company could delegate those choices while influencing managers through its training and corporate culture.

Sellers presented the employees’ argument; Brad Seligman was Supreme Court counsel of record. Behind them stood the named employees, trial and appellate lawyers, experts and civil-rights organizations that had developed the case over a decade. The Court was reviewing whether their claims could proceed together and whether the proposed class could recover backpay.

Choosing Candidates and Setting Pay

Betty Dukes and other named employees filed the federal action in 2001, alleging that women received less pay and fewer promotions than men across Wal-Mart’s domestic retail operations. Promotion openings were not regularly posted. As Justice Ruth Bader Ginsburg later described the record, managers could identify candidates informally, leaving other qualified employees without an opportunity to apply.

Pay decisions allowed similar latitude. Managers could set hourly wages within bands and make adjustments without written criteria governing the full choice. The employees argued that Wal-Mart’s common job structures, personnel systems and corporate culture connected these local decisions. Wal-Mart’s formal policy prohibited discrimination; the company maintained that different managers made different decisions for different reasons.

The employees sought to test the delegation itself. Their statistical analyses compared pay and promotion outcomes, declarations described individual experiences, personnel policies established managers’ authority, and social-framework testimony examined how subjective decisions could permit gender bias. Together, those forms of proof were offered to connect dispersed employment choices to a common practice.

Each form of evidence had a different task. The statistics needed a link to the decision process; the employee accounts needed enough reach to illuminate practices beyond isolated stores; and the expert testimony needed to connect susceptibility to bias with actual decisions. Wal-Mart contested those links, emphasizing local variation, its equal-opportunity policy, the geographic distribution of declarations and the expert’s inability to estimate how often bias affected employment choices.

Becoming a Civil-Rights Lawyer

Sellers traced his interest in civil rights to two experiences: watching televised attacks on peaceful Black demonstrators in the South during the 1960s, and running on a high-school mile-relay team in Philadelphia with three Black teammates. As they came to depend on one another, he noticed the racial insults and slights they encountered. He later recalled realizing that the discrimination he had watched from a distance also existed close to home.

He graduated from Brown University in 1975 and Case Western Reserve’s law school in 1979. His work at the Washington Lawyers’ Committee for Civil Rights and Urban Affairs included directing its Employment Discrimination Project. In 1997, he established a national civil-rights practice at Cohen Milstein.

Sellers is a partner at Cohen Milstein, where he founded and co-chairs the Civil Rights & Employment practice. His work includes individual claims as well as class actions. In Dukes, he and the employees’ team had to show why the evidence could support a shared proceeding across thousands of workplaces.

Two Questions Before the Court

Federal Rule of Civil Procedure 23(a) requires numerosity, commonality, typicality and adequate representation. For the proposed class of roughly 1.5 million current and former women employees, commonality became decisive. The employees needed a contention whose resolution would answer an issue central to each claim; the number of employees alone could not supply it.

The employees also sought certification under Rule 23(b)(2), which permits a class when one injunction or declaration can address conduct affecting the group as a whole. They wanted changes to pay and promotion practices, declaratory relief and backpay. Combining those requests raised a separate question: could the monetary claims proceed under a provision that lacks the mandatory notice and opt-out rights of the damages-class rule?

After extensive discovery, the district court certified the class in 2004. It accepted the uniform delegation of discretion, corporate culture, statistics, declarations and expert evidence as a sufficient basis for a common question. The order authorized the named employees to pursue the claims for the class using that shared proof.

An en banc Ninth Circuit affirmed much of the certification. It allowed current employees to seek prospective and declaratory relief and backpay, while directing further consideration of punitive damages and former employees’ claims. The appellate majority concluded that the district judge had used a permissible certification framework and left disputes about the ultimate weight of the evidence for later proceedings.

The judges nevertheless disagreed about how a trial would work. Some saw an institutional practice that could be proved collectively; others saw employment decisions that required separate examination of each manager, employee, opening and pay choice. The Supreme Court agreed to review both commonality and the use of the injunction provision for backpay.

Sellers’s proposed injunction addressed the decisions at the center of the case. It would require detailed, job-related criteria for pay and promotion, effective oversight and accountability for managers. The same discretionary practices the employees sought to examine through statistics and individual accounts would become subject to documented standards and review.

Recordkeeping complicated the request for lost pay. Informal promotion decisions could leave no complete list of openings, applicants or rejected candidates. Sellers argued that reconstructing old decisions through individual hearings would be unreliable when managers lacked records explaining what they had done. The employees proposed representative proof; Wal-Mart insisted on its right to defend each challenged decision.

The Justices Divide on Commonality

On June 20, 2011, the Supreme Court reversed. Justice Antonin Scalia wrote the commonality ruling for five Justices: himself, Roberts, Kennedy, Clarence Thomas and Samuel Alito. They required significant proof of a general policy of discrimination and found that Wal-Mart’s express prohibition and broad local discretion did not establish one answer that could resolve every employee’s claim.

The majority required a common mode of exercising discretion throughout the company. Its “glue” metaphor described the missing connection among the alleged reasons for millions of pay and promotion decisions. National and regional disparities could reflect bias, lawful local variation or both; the majority found no classwide method for choosing among those explanations at store level.

The majority also found the social-framework testimony too indeterminate because the expert had not estimated how frequently susceptibility to bias produced discrimination. It regarded roughly 120 employee declarations as too sparse and unevenly distributed for the nationwide class.

Ginsburg, joined by Stephen Breyer, Sonia Sotomayor and Elena Kagan, reached a different conclusion on commonality. In their view, the uniform delegation of pay and promotion decisions under common corporate conditions supplied a shared question. Statistics, personnel practices, culture evidence and employee accounts could together test whether that delegation produced disparate treatment.

Ginsburg distinguished the threshold requirement of a common question from Rule 23(b)(3)’s demand that common questions predominate over individual ones. She concluded that the majority had imported the more demanding inquiry too early. She would have returned the case for consideration under Rule 23(b)(3), including its notice, opt-out, predominance and manageability requirements.

Backpay and the Limits of Representative Proof

All nine Justices, including the four who disagreed on commonality, held that individualized backpay could not proceed under Rule 23(b)(2). That provision concerns relief that applies to the class as a whole. The damages-class rule protects absent employees through notice and an opportunity to opt out; using the injunction provision for individualized monetary claims would bind them without those protections.

Wal-Mart also had a statutory right to present individual defenses. Under Title VII’s pattern-or-practice framework, an employer can offer a lawful reason for a particular employment decision even after broader discrimination has been established. The proposed “Trial by Formula” would sample claims and extend the resulting percentage to the class. The Court rejected that method because it could displace the employer’s opportunity to contest each person’s entitlement to backpay.

The nationwide certification ended with those two holdings: a five-Justice ruling on commonality and a unanimous ruling on backpay. On remand, the plaintiffs sought a narrower California-centered class. Certification was denied in 2013, and that action ended through confidential settlement and voluntary dismissal in 2016.

In Tyson Foods v. Bouaphakeo, the Supreme Court later explained that representative evidence could support a class when each member could have used the same proof in an individual action. Whether the evidence was admissible depended on the claim and the proof offered. Dukes therefore did not establish a categorical prohibition on representative evidence.

When Sellers reflected on his career in July 2023, he credited his colleagues at the Washington Lawyers’ Committee and Cohen Milstein, and the support of his wife, Laurie Davis. “None of us succeed alone,” he said.