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policy on the basis of gender by submitting 120 separate affidavits, or one for every 12,500 members of the class, also does not prove the fact. The diversity of the plaintiffs’ group as regards job level, duration of employment, store worked (out of 3,400) in which state (out of 50), under many supervisors subject to many different regional policies, and job satisfaction and progress, all point to the fact that this suit is not representative of all the women in the class.(2)No. Claims for monetary relief are not applicable under Federal Rules of Civil Procedure 23 (b)(2) if the claim is not ancillary to an injunctive or declaratory relief. A class which is in accordance with Rule 23 (a) must also satisfy one at least of the three requirements of Rule 23(b). In this case the class was sought to be certified on the basis of Rule 23(b)(2) which is meant to apply to a class for whom a final injunction or declaration would provide relief for the class as a whole from a party who acts or refuses to act on a basis which affects the members of the class as a whole. This would mean that a single injunction or declaratory judgment of the court in this case would provide relief to each andevery class member, which is not the case. Moreover, the monetary award in this case couldnot be applied to all members of the class. Thus this rule does not allow class certification
in this situation. The monetary relief is not primary but incidental, and is a direct consequence of the class liability being established, without the need for additional hearings. The Ninth Circuit had established a “predominance test” for the allowability of monetary claims under Rule 23 (b) which allowed such claims to be certified as long as they were secondary to the claims for injunctive relief. This test was rejected for the “incidental damages” test used above. The decision is reversed.Analysis: The Supreme Court reversed the lower court order in a unanimousopinion by Scalia. "Here, proof of commonality 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 employment decision,' and respondents wish to sue for millions of employment decisions at once," Scalia wrote. "Without some glue holding together the alleged reasons for those decisions, it will be impossible to say that examination of all the class members' claims will produce a common answer to the crucial discrimination question." Conclusion: A class consisting of more than a million women employees of a single employer all over the U.S. cannot be certified as such if they fail to prove that all the members were subject to the same discrimination in respect to the employment policy, and so do not fulfil the criterion for commonality of fact or issue.