Supreme Court Today: Women vs. Wal-Mart

by Chris Cassidy on March 29, 2011

David and Goliath, step aside. Today’s oral argument before the Supreme Court requires the increasingly pro-corporate justices to determine whether the largest gender discrimination case in American history can proceed against the world’s biggest retailer. The case is Wal-Mart v. Dukes.

When Betty Dukes started working at Wal-Mart in 1994, she was a part-time cashier earning $5 an hour and dreaming of climbing the corporate ladder into management. Five years later, she had made little progress toward realizing that dream. Expressing her frustrations with managers only made things worse, leading to a demotion and pay cut.

Dukes is one of several hundred thousand women suing the retail-giant, but only if the Supreme Court gives them the green light. Though the case has been in litigation since 2001, when the suit was filed in a San Francisco federal court, no court has ruled on whether the widespread, systematic gender discrimination alleged by the plaintiffs did in fact take place.

Nor is that issue before the justices today. In what is widely seen as the biggest Supreme Court case of the year, they must only decide if the women’s claims may proceed as a class action, or whether each individual plaintiff must dedicate the resources to filing her own claim against the well-funded and heavily-lawyered corporate behemoth.

For a group of plaintiffs to join together as a class action, federal law requires that their claims present sufficiently “common questions of law and fact.” Essentially, this means that they must have suffered similarly from comparable, illegal behavior by the defendant. Wal-Mart complains that each woman’s gender discrimination claim is too different to treat them as one big class. And they are keen to convince the justices that size matters.

The class of women suing Wal-Mart is somewhere between 500,000 and 1.5 million, and will only be narrowed to a specific number once the class action moves forward. Lawyers for Wal-Mart argue that no group of plaintiffs so big could possibly have enough in common to resolve their complaints as a class.

Critics of Wal-Mart’s approach agree that size matters, but they point to the size of Wal-Mart – not the class of plaintiffs. According to Paul Bland, a senior attorney at a public-interest law firm Public Justice, Wal-Mart’s arguments boil down to this: “As long as you discriminate against enough people, courts can’t get involved.”

Class actions play a vital role in our court system. They free up judicial resources by allowing judges to avoid the Groundhog Day-scenario of hearing the same case over and over again. They also make justice accessible to poor plaintiffs, or those who suffered small injuries, where a defendant’s bad behavior caused widespread harm.

For instance, instead of Uncle Lou having to get a lawyer he can’t afford, or pay more in legal costs than he might receive in damages, class actions permit plaintiffs to unite behind legal counsel who can argue their claims collectively. Because of this, class actions are an essential tool for combating widespread wrongdoing by large organizations.

The women of Wal-Mart argue that, not only would a Wal-Mart victory spell the end for large cases against corporate giants, but Wal-Mart’s corporate culture cultivated a chauvinist environment from which they all suffered. That culture included stereotyping females, telling them to “doll up” with make-up, holding management meetings at Hooters, and generally referring to women employees as “Janie Qs.”

In an unusually slanted piece, the New York Times’ Adam Liptak reported that the plaintiffs’ case may turn on what he describes as “the hotly disputed conclusions of a Chicago sociologist.” (Editorial note: click the previous link at risk of encountering the new “paywall.”)

Liptak’s assessment was uncharacteristically myopic, considering that all evidence in litigation could be construed as “hotly contested,” which might lead readers to believe that the “hot contest” is between scientists rather than lawyers. Moreover, the Times piece only references in a passing line the real heart of the case: statistics.

Perhaps the most significant evidence submitted by the plaintiffs is that concerning the compositions of Wal-Mart’s employees and managers. The fact that women make considerably less at Wal-Mart than male employees may be objectionable, but that tragic inequity is true throughout the American economy.

Where Wal-Mart stands out, however, is in its share of women wage-laborers, versus the proportion of managers that are women. Women compose two-thirds of all hourly staff at Wal-Mart, but only 14% of store managers and 10% of district managers. This sad reality is all too familiar to Betty Dukes and the other 1.5 million women who have worked for Wal-Mart since 1998.

The Supreme Court’s most controversial case last term may stand as a red flag for everyday people like Dukes, who seek redress for corporate wrongs. In Citizens United v. FEC, the Supreme Court discarded over 100 years of case law to reach the unprecedented decision that corporations, as legal “people,” have the same free-speech rights as anyone else under the First Amendment. The case was widely panned by Americans of all stripes and opened the floodgates of corporate spending in elections by striking down key campaign finance reforms.

To continue down its pro-corporate path, the Roberts Court must reject all three findings by prior courts in Dukes v. Wal-Mart. Every court yet to consider the case endorsed Plaintiffs’ calls for recognizing them as a class.

A federal trial court judge in San Francisco, as well as two panels of the Ninth Circuit Court of Appeals, sided with the former and current Wal-Mart employees, reasoning that their claims of Wal-Mart’s corporate culture were sufficiently similar to treat as a single case. The decisions by the Ninth Circuit were narrow, however, with each being decided by a single judge’s vote over the vociferous dissent of the jurists in the minority.

With oral argument being held today, the Supreme Court’s decision is months away. Betty Dukes, the women who keep Wal-Mart’s doors open, and advocates for little people everywhere will wait with bated breath as the notoriously corporate-slanted Roberts Court threatens to eviscerate one of the most important tools in our legal system for checking large organizations – behemoths like Wal-Mart who would prey on the meek, the underprivileged and the otherwise vulnerable members of our society.

Chris Cassidy is a progressive writer and communicator in Washington, D.C. and a graduate of U.C. Hastings. Cassidy has written for the American Prospect, Change.org and the Harvard Law Record. His random musings can be followed @CitizenCassidy.

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