discretion is in some ways the opposite of cohesive claims that are common to everyone in a class. they are either neutral, and not to be argued as discriminatory, or they are nondiscriminatory. . .

can they conclude that it is their policy to decentralize discriminateion. >> it would take more than one report in a company that has so many stores. the plaintiff's claims are not typical. they are supposed to represent 1 million or more people and stand in judgment. that is the word that the court used. the claim is that the individual decision makers in the other cases exercise their

discretion in a way that was biased. >> the chief justice's question reminds me of a question from a case in 1993. the plaintive is not responsible for a constitutional violation unless there was a policy. could we use that to determine whether or not there is a common question here? >> the analogue is if the company had a policy of general discrimination and saw patterns throughout the company and because of gender continue to allow the pattern to exist -- >> there is a showing of deliberate indifference to the violation. would that be a policy? >> do the brits in different ways this -- raises a different

question. the question is was the company and now when the discrimination to occur because they wanted discrimination. there is no evidence of that here. >> is there a possibility that the number is what has been left out? a company gets reports month after month showing that women are disproportionately passed over for promotion and ther is a -- there is a pay gap between men and women doing the same job. isn't there a responsibility on the company to say, if there is discrimination at work, isn't there an obligation to stop it?

>> yes, there is an obligation for a company to ensure there are not wage gaps and discrimination. if you look at the aggregate statistics, it points to a different issue. it does not show that there was a gender gap among stores between comparable people. their argument is that individual decision makers were making stereotyped decisions and that had a, effect. -- a common effect. >> i thought that he performed and affirmed any number of

controlled variable comparative, including job history, a job rating, and other things, and found that the disparity could not be explained among any of the normal burials one would expect. the disparity -- normal variables one would expect. what is speculate about that? -- speculative aobubout that? and where does it show that a policy exists? >> he did not do a regional regression. even if he had, these statistics go to the marriage.

-- to the merit. >> you are right. you may win and proof that this analysis is based elite lot -- prove that this analysis is fatally flawed. your expert was basing analysis on premises that the court found unacceptable. what is the standard that the court should use in upsetting that conclusion? >> the district court found it was not the stage to make a determination between the two. the other case said there needs to be a choice. there has to be some

demonstration that there is a, common effect. at 90% of the stores, there was no pay disparity. the plaintiffs need to come forward with something that shows there was this miraculous occurrence that it was the same among all of the stores. the other problem among the cohesion announces -- analysis. each plate of has a different story. one was terminated because of a distant larry -- a disciplinary violations. they need to show that they were treated differently from people who were situates it just like them. >> what do you think is the

difference between the standard that the district court was required to apply at the certification stage to prove there was a company wide policy and a standard that could be applied on the merits.? >> the plaintiffs needed to point to a policy that was common and these individuals and locations were linked together. they argued that a common policy gives individuals discretion to do what they want. >> i do not think that is quite fair. their argument was that the policy was one of complete subjectivity and they allowed to gender discrimination to come into all employment decisions. in lawson, we suggested that was

a policy, a policy using subjective factors only in making an employment decision. >> they do not argue that it was an entirely subjective process. if it were entirely subjective, it would be a different issue. there weren't general company standards that exerted control. on page 13 of the briefing, they said the discretion was undie did \ -- unguided. >> i am confuse that subjectivity is not a policy that can be alleged. >> in watson, the court held

that subjective decision making could be held. there needs to be a demonstration of a specific practice within that policy. title 7 does not government policy. the browns practiced es. wal-mart has a combination of -- practices and policies. >> there was a case in the 1970's. it was an action against at&t for promotion into middle management. what was at issue there was part

objective. at the end, it was a total person tests. the idea was not at all complicated. a decision maker always promotes someone who looks like him. the application of the total person context was found to be a violation of title 7. this one is quite similar. it is not just that it is subjected. you have an expert and i have some questions about that expert. they are saying that gender bias can creep into a system like that. it is a natural phenomenon.

people feel comfortable with people like themselves. >> this is not like the total person test. that is a good example of something that could be a practice. if you had a case where a particular decision making unit applied a total practice test, they would have a much stronger case for a class action. there is a sociologists here who is supposed to hold this class together. he said he could not tell if stereotyping was occurring at 95% or at all. if this is a class action, the question is if we can assume that every decision maker active in the same manner and inflicted the same injury and the plate death -- plaintiffs had the same

interests. it is not co he sent to protect the class members or the defendant. >> that suggests that the plate that -- plaintiff would have to demonstrate discrimination in every case. all they have to demonstrate is that there is a practice or a policy of subjectivity that results in discrimination against women, not that each one of these women in the class were themselves discriminate against. >> we are not arguing that a plaintiff would have to show that every class member was discriminated against. there must be proof of a standard operating procedure of discrimination. it is undisputed that walmart's

policy was anti-discrimination. each person would have to come forward in stage one. the other big problem is that the district judge said that wal-mart would not be entitled to put out individual defenses. women who thought they had a claim would not be able to come forward if this process up paper records suggested they did not have a claim and argue that they should be compensated. the plaintiff is try to cut off half of the work because title 7 states that all the victims of discrimination may recover. >> what happens to be damages claimed by individual women who

are part of this class if the class prevails? >> the class prevails, the claims would be resolved in this manner in the way the district court had in mind. she would be eligible for only back pay or convince the tory damages. -- back pay or compensatory damages. they waived compensatory damages. >> even though she could not have received notice and not had an opportunity to opt out. >> greater than if this case is

going to be certified, it needs to be look at under rule 23 b 3. that rule was created for precisely this circumstance where individualized monetary claims are at stake. >> i thought the position was that this could not be certified under rule 23 b 3. >> if they are trying to circumvent the procedural protections, they would not be certified under rule 23 b 3. >> if their claim is that they are seeking an injun ctive, wouldn't that have

valued? wouldn't it stand along without the damages component and the plaintiffffs who, in have a case and the burden shifts to walmart? >> there would be a benefit to injunction if the plaintiffs got all of the standards. >> even if they did, why couldn't you separate out the b 2 issues from the b 3 question where monetary damages warrant these certifications of b 3? >> that could raise other complications. the plaintiffs are seeking

punitive damages. these monetary claims are so individualized. >> would you address them separately for me and tell me why a b 2 class could not exist only on injunctive relief? is your attack only the monitor component of this, the back pay? is bathat compensatory realleli? >> there are significant problems involving at was the and cohesion. this statement includes 544 store managers who allege to be

discriminated against and victims. the women who are compelled to be in the class cannot opt out. they cut across every position in the company. there is no demonstration they are affected in a common way. there would still be the cohesion problems because of the nature of the plane to's -- plaintiff's case. >> correct me if i am wrong. i thought the class would get noticed and had an opportunity to opt out. a member of the class who wants to go for compensation could opt

out. >> in the ninth circuit, punitive damages were sent back. there would not have to be notice or an opportunity to opt out. there is a balancing test under b 2. this court talked about the fundamental rule that an individual is not bound by a judgment to which they are not a party. we cut rules at sharp corners. that is why it needs to be will 23 b -- rule 23 b 3. >> you are claiming that monetary elite includes equitable relief -- monetary

relief includes equitable relief. >> that test is much better than the test that was applied below. they have never contended they could meet the incidental damages test. only automatic back pay would qualify for that. here, this is individualized. >> would you accept the incidental test as appropriate as to the question of when monetary damages dominate or don't? >> the only ambiguity that is created it is from the advisory committee. as this court said three weeks ago, we do not look to legislative history to create ambiguity.

the other parts of the advisory make clear that the drafters were concerned about the historical antecedents. i think the drafters of the rule 23 b3 would be shocked to learn that this case was being saw to be included in a b 2 class. it would be closer to a sharp bright line rule. i would like to go back briefly to the point i made earlier about individual elite in the taking away the rights of walmart. -- individual reaelief in taking away the rights of walmart.

the ruling would allow the prediction about who might have been hurt and how many people might have been hurt and a dividing up of money based on that. the district court concluded a presumption that discrimination occurred in a pattern of practice. it would allow individuals to come in and have their day in court. that violates title 7 and we think it shows the court's logic in this case. >> what if the class does not prevail? does that bar an individual one at a particular walmart from bringing these same claims? >> yes, your honor. class actions are always close. the bigger the class action, the better.

it the plplaintiffs lose, there would be significant questions. it is not fair to anyone to put this all into one big class. >> you are not suggesting they would be precluded on individual discrimination client? >> individual claims are separated. >> what if the reason this person was able to discriminate was because it had -- he had total subjective discretion. >> i would like to reserve my remaining time for rebuttal. >> justices, may it please the

court, this follows the teamsters models series of discrimination. as a consequence, there is no requirement to have a formal policy of discrimination. >> what would be in junction look like in this case? >> it would be a series of remedial measures that would direct walmart to provide detailed criteria by which epee and promotional decisions are job related -- by which pay and promotional decisions are job related. it would hold managers accountable for decisions they make. it would ensure the effective oversight of promotion decisions. the company did have information regularly submitted to it about pay decisions. it took no action.

it did not effectively monitor and allow these problems to fester. >> on this scale, objective decision making processes are necessarily illegal? >> no, not necessarily. >> how many examples of abuse, of objective discrimination need to be shown before you can say it flows from policy rather than from bad actors? i assume you are a point to have some at apples. >> we have examples in the record. >> if somebody sends one letter in and says this guy is discriminating. that cannot be enough to prove discrimination. >> there is no minimum number.

as an example, in the teamsters, the court had 40 examples. significantly, they were not required. we have more than that. in order to establish a practice and pattern of liability, teamsters says you need to show that there were disparities sufficiently substantial to create an inference of discrimination with respect to a discreet practice. >> is it true that the pay disparity across the country was less than the national average? >> i do not know that that is a fair comparison. the position that wal-mart has advanced is against the general population, not with people in retail.

walmart's obligation is to ensure that its managers do not make pay decisions because of sex. a comparison is relevant. it is between men and women at wal-mart, not the general population that includes people at retail, real world workers and all kinds of other people. that is not -- rail road workers and all kinds of other people. >> what is the policy that walmart adopted under your theory of the case? >> our theory is that walmart provided its managers with unchecked discretion that was used to pay women less than men who were doing the same work in the same facilities at the same time, even though those women had more seniority and higher performance and were provided with fewer opportunities for promotion because of sex. >> your complaint faces in two

directions. arkansas or headquarters knows everything that is going on. it seems to me there is an inconsistency there. i am not sure what the unlawful policy is. >> there is no inconsistency no more than it is inconsistent in walmart's own personnel procedures. the company provides managers with this discretion. it is not a broad kind of -- they are not attacking every tactic in the pay and promotion decisions. there were parts of the process that are totally discretionary. there is no guidance whatsoever about how to make those decisions. with respect to the discretion, and restore the district court found that the managers were provided -- with respect to this

question, at every store, the district court found that the managers were provided with discretion. they called it the walmart way. the purpose of that was to ensure that in these various stores, the decisions of managers would be informed by the values the company provided to managers in the training. it is a form of disparate treatment. they are making these decisions because of sex. we have stereotypical evidence and statistical results. >> on the one hand you say the problem is they were uttered its objective. on the other hand you say there is a -- the problem is that they were utterly subjects did. on the other hand, you say the

individual supervisors were left on their own. there is a strong corporate culture that tells them what to do. >> is broad discretion given to managers. they do not make these decisions in a vacuum. they make these decisions within a company. i am is suggesting they are given this description -- this discretion. they are informed by the company how to exercise this discretion. >> if somebody tells you how to exercise discretion, you do not have discretion. >> there were consistent disparities in every region. >> what do you do about the unchallenged fact that the central company had a policy against sex discrimination? it was not totally objective at

the managerial level. it was, you make these hiring decisions, but you do not make them on the basis of sex. wasn't that the central company policy? >> was not a policy communicated to the managers. at the institute where every manager has to be trained, they provide as a response to a standard question, why are women so under represented? the response given was because women -- men are aggressive in seeking advancement. that is a stereotypical statement provided to every man going through the management program. that informs their decisions when they have discretion to make promotions. >> that causes them to intentionally discriminate on

the basis of sex? how could that cause them to intentionally discriminate on the basis of sex? >> i have an intent to take sex into account in making their decisions. that is the applied stereotype, that women are less aggressive when it comes to assessing their suitability for promotion. >> is just an assessment of why the percentage is different at wal-mart and throughout the industry. to say that that is the explanation is not to tell your people do not promote women. if you have an aggressive one, promote her. >> i understand that. there have been women promoted. first of all, we think the questions you are raising our

ones that wal-mart can raise at trial. the question at this juncture is whether there are questions, to be class. we have identified what has been recognized as a common policy. there is no dispute this policy is applied throughout the company. we have shown, as we think we have to, that there are disparities at first two women. we have the means to show through the testimony and other evidence that we can connect these two. >> you have sufficiently sean, despite the fact -- you have sufficiently shown -- have you shown that there is a central policy that promotes discrimination against women?

>> we have testimony on record from the vice president that that policy was the service at the company. >> is that this something that would be -- we are talking about certifying a class. you may lead on every one of these points. the 23 a standards are not supposed to be difficult to overcome. they are just questions of fact. >> i am sorry. >> it is a serious problem in this case. how do you work out the back pain? -- back pay? we have a class certified under

23 b 2. there is no way i could possibly try each of these individuals. how are they going to calculate the back pay? >> he approached the district court endorsed, which has been endorsed by seven circuits over 40 years, is that the company had no standards by which to make promotion and pay decisions. they had no records of people being promoted and the reasons why they were paid certain amounts. as a consequence of that, the team's third decision made clear that the obligation of the district court on -- the team's staster decision made clear that

the more reliable method is to use a formula reliant on walmart's robust data base where it captors performance, seniority, and other job-related -- captures performance, security, and other job-related information. >> what if you had a situation where you had a company with a clear policy in favor of equal treatment of men and women? the answer to your question was that women do not have as many positions was because managers discriminated against them. yet, you still have the same subject it delegation system.

could you have a class of women who were harmed by these objectives -- by the subject oie policy? >> it would be appropriate to seek some rejudgment. >> this company has 1000 stores. you would be able to find a good number who are not thought when the company postal policy or who are exercising their subjective judgment against equal treatment. could to bring a class action as a result of that subjective policy? >> could bring a case for women

who were victims of that policy. we have evidence here of results that are really extraordinary. >> isn't it a common question of law or that whether, given the training, which central management knew, given the fact about what people say and how they behave, many of which central management knew, and giving the results, which central management knew or should have known, should central management, under the law, have withdrawn some of the subjective discrimination? is that something that every woman in this class shares in common? >> they have all been the subject to this broad

discretion. >> didn't the district judge say that someone gets a windfall and others would be under compensate it? >d? >> he thought that the formula would permit a comparison between each woman and the amount she was paid and would take into account seniority and performance. you would find there were women who were not underpaid. >> i thought his point was not simply that some women were not underpaid, but if you have an individual case, the employer might show that this person was

fired or disciplined and was not bode -- oewed any pack back pay, not that she was not owed at all. >> the evidence shows that women have higher performance than men and were still under paid. >> doesn't your class include both those women who work under paid and those women who were not underpaid? doesn't your class include boat? isn't that common -- inlcudclude

both? >> what is common is that they were all subject to be highly discretionary decision making. >> correct me if i am wrong. i thought the team'sster case was an action by the government. >> it is a paradigm that we used to establish a pattern and practice of discrimination. >> let's suppose that expert testimony establishes that in the industry generally and retail women are still discriminated against by a mathematical factor of x.

>> you have a company that has a pattern of discrimination and you find it is there -- a disparity by that same mathematical factor. is that a cause of action? >the company does have a policy against discrimination. >> the company's discrimination under title 7 is to ensure that promotion decisions are not made because of sex. it be comparison between the pay women received compared to men within the company is such that they are underpaid compared to similarly situated men in the company, the company would have little responsibility under title 7 regardless of what happens in the rest of the industry. >> would that be true if you

could not show a deliberate indifference? >> i do not know if the standard is delivered in different. i think that under this court's's decision -- >> there is no deliberate different and there is a specific policy, can you still proceed? >> i can proceed if, announcing the policy saying do not discriminate were to be effective, imagine every company in the company would publish that policy and half free license to discriminate as much as it wanted. >> i understand justice kennedy 's question to be that is typical company would not -- >> it is not just academic literature. it is the precedent from this

court. hazelwood said that you do not look to populations throughout the -- outside the company to look for comparisons. >> let's say everything a company had exactly the same profile. you would say every single company is in violation of federal law. >> that could be the case. title 7 hold companies responsible for the actions they take with respect to their employees. 40 years ago, the entire industry might have had evidence of discrimination. that would be ana negative stand it.

>> could only be attributed to sex discrimination. otherwise, how can you say that all of the companies are presumptively engaging in discrimination? >> in this instance, we have statistical regression analysis that takes into account factors such as performance and security. i was the >> not talking about this case. i was talking -- >> i was not talking about this case. i was talking about your answer. >> i do not take that position. what i was trying to make clear is the fact that there are other companies in the same industry with the same problems arise. walmart was behind the same --

behind the other retailers. i cannot speak for the rest of society. i do not have any reason to think that the entire society is engaging in employment discrimination. >> when did you think it is that individual rights -- describe the kind of formula you would use . when is the individual hearings approach ballet it? -- valid? >> when you have a database to reliably construct the decisions that would have been made as the result of its culmination. there may be companies where they had a better record or

standards that would permit the reconstruction of those standards to an individual hearing. i am not contending that you can always use a formula approach in connection with these cases. this is an extraordinary case with evidence where they had no standards. > >> could not possibly have a hearing in each case where each particular woman was owed back pay. >> the district court made the comment that the number of class members would make the administration of individual hearings difficult. >> i thought you said more than difficult. >> he may have set impossible. the portent point is that the

district court may specific -- the important point is that the district court may specific findings that the use up a formula would be more reliable than individual hearings. >> i am confused because you are saying an individual hearing is impossible. that is exactly what you saying you are going to do, only through statistics. you are saying through my statistical model, i will be able to identify those women in the class who are deserving of pay raises. what that does not inserts is win in this process is the defendant -- does not assert is when the defendant will defend against that binding. i elite suggesting that the district court would appropriately -- are you suggesting that the district

court's intended to stop these women from collecting money -- district court intended to stop these women from collecting money? >> they will all have an opportunity through the argument over which variable to use. there was a debate about which variable to use. it will have an impact on whether women were shown to be underpaid or under promoted compared to men. >> that sounds like you are saying their only opportunity would be on the model and they are precluded from attempting to show individual evidence that a particular decision was not made. >> if walmart comes forward alone and is able to persuade the district court back --that it has a way consistent with a

reliable determination of who was paid what -- >> what you are saying is, we will preclude them from doing anything but offering a mathematical model. otherwise it is going to beat too hard to have individual hearings. let me a >> answer you directly. i am not saying that -- >> let me ask you directly. i am not saying that. it can make decisions more reliable in an entirely subjective environment. i do not submit it is going to be able to do so. >> it takes evidence to establish it is more reliable to have a hearing on evidence on a particular promotion or dismissal of the individual. that is more reliable than using -- i do not care how

admirable a statistical guess you make -- is that really a question? >> i think it is. >> we must have a pretty bad judicial system. >> is not the judicial system. it is the pay and promotion system. managers are point to come forward to speculate about what they did 10 years later with no records to examine them on. that is not a model for reliable adjudication. >> should use that in jury trials. our really old cases, we should put a statistical model before the jury. is this really do process? >> i submit it is. in the narrow set of circumstances we have here, where there are standardless and

recordless circumstances. >> why is there commonality? >> the standardless aspect is with respect to try to reconstruct these decisions years later. as i said before, we have a common policy to present a common question. we have shown evidence that would create a prima facia case. >> one thing you have not touched on is -- it you follow the advisory committee notes, you cannot use

b2. you have to make the se under b3. about half the class is gone. they are not interested in presumptive relief. but everybody is interested in money. why do you say the presumpstive relief is more and the money is less? it should be the other way around. >> the advisory committee makes

clear that whether or not an action or inaction is taken with respect to the class, it depends -- it does not depend on the number of people are adversely affected by that action. walmart employees would be included in the class under b2. the question is not who should be in a position to seek pre sumptive relief. >> mr. boutrous, you have four minutes remaining. >> mr. sellers has made clear that walmart can prevent women

from seeking back pay. because of the nature of the claims, discretionary decisions were being implemented in a way that the affected different people differently. the problem, he says, is that the records are not available. he says he will have a proceeding with a district judge. he says the records are an adequate to allow reconstruction of the decisions. that does not comport with due process. it injures the rights of the individual women. >> you do not seriously contend that if the policy or practice work out of discrimination that a woman cannot come in and say, i had a longer history at wal- mart. i had superior job ratings and

no criticism of my work and i was not promoted? wouldn't that be enough to show that that policy influenced her lack of selection? and your personnel database has all that information. why is it impossible other than because of their large number? >> what you just outlined -- we agree a woman should be able to say that. she could say, the records do not show what happens. i was a better employee and the guy working next to me. under the plaintiff's theory, walmart would not be able to say this person was a terrible employee. on the record, it is not impossible to recreate these decisions. managers remember that this person violated company policy.

that this person was fired because of infractions regarding her hours. >there is no dispute about the policies that existed at the time. >> my question is, why can they have their b2 class on the injunction? >> commonality is something that affects everyone differently. they are not arguing everyone was affected the same way. maybe some men or women stereotyped in the other direction. it is impossible to make these sweeping generalizations, which is what stereotyping is supposed

to prevent. there is absolutely no way there could be a fair process. on the policy question, the plaintiff's 0.2 general control. they do not want to point to the policy against discrimination. there is a declaration that lays out an aggressive effort from the company -- >> how about the vice president that said it was just window dressing. >> i am glad you asked about that. he testified about the goal of the company at the time, the effort to get more women into management. in his view, until the company linked diversity goals to management -- he wanted to be more aggressive. his goal was