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Community Voices: Discount justice for women in Wal-Mart v. Dukes ruling

GLORIA J. BROWNE-MARSHALL

How much does justice cost?

In this recession, most shoppers rushing home with their holiday treasures began by seeking store discounts and bargains. Wal-Mart is the king of discount retail, nationally and internationally. Unfortunately, Wal-Mart is also alleged to be the king of discrimination against female employees.

More than a million women, past and current employees, in 50 states, claim to be victims of discriminatory acts by Wal-Mart managers. They allege discrimination in pay and promotion based on gender. Trying a lawsuit against Wal-Mart or any multi-national corporation is a daunting task. The women’s case against Wal-Mart, the discount giant, was dealt a crippling blow before it even went to trial.

Wal-Mart grew to be the world’s largest retailer from humble Deep South beginnings. Its headquarters is located in the town of Bentonville, northwest Arkansas, population about 35,000. However, that town is now the only thing small about Wal-Mart. It boasts 3,400 stores, $419 billion in sales, in 28 countries.

Buying and selling in massive quantities, Wal-Mart is known as fiercely independent, as well as uncompromisingly brutal, in its demands for the lowest prices from vendors. Those discount prices are passed onto the millions of customers loyal to Wal-Mart, Sam’s Club and its progeny. The store that understood the mindset and pocketbook of working class people now draws celebrity designers seeking to market their wares to customers whose sheer number can make a vendor’s company successful. Wal-Mart is as formidable a competitor in retail sales as it is an opponent in the courtroom.

In Wal-Mart v. Dukes, female employees alleged Wal-Mart managers violated Title VII of the Civil Rights Act. To bring a million individual lawsuits against Wal-Mart would require a fortune and an army of attorneys and paralegals. The law allows class action lawsuits, greatly reducing costs, time and effort. However, a class, or group of plaintiffs, must meet certain criteria such as a common question of law and fact between all of the complainants in order to be considered a class.

Betty Dukes, the lead plaintiff, was successful in getting class certification granted at the trial court level. Wal-Mart appealed. The appellate court agreed with Dukes. Then, Wal-Mart appealed to the U.S. Supreme Court. It was there the fatal blow was struck.

A divided Supreme Court ruled 5 to 4 against Dukes and the Wal-Mart women who sought justice. Once again, decisions of our highest Court resembled the divisiveness of Congress. Justice Antonin Scalia wrote the opinion, joined by Chief Justice John Roberts, Justices Anthony Kennedy, Clarence Thomas and Samuel Alito. The dissenters were Justices Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

The crux of the case is commonality. Are there enough common factors between all of the female plaintiffs to be part of a class action suit? That issue must be decided before any evidence of discrimination can be tried. However, the women had already shown that Wal-Mart allows its managers complete discretion to decide the pay and promotion of employees. Certain women were referred to as “dolls” and told to wear more make-up. Dukes presented the fact that women comprise 70 percent of hourly workers and only 33 percent of managers. Overall, women earn less money at Wal-Mart than male employees in the same jobs. The women argued gender bias was pervasive within the Wal-Mart company culture.

Commonality should be of concern. The Court’s decision correctly raises commonality concerns in a legal action representing 1.5 million plaintiffs. But, the Court failed to accept that a multi-national corporation with a million current employees and tens of millions of customers can, realistically, spawn massive injuries such as those alleged by Dukes. In a global village, one international company can, and did, cause injuries to millions. The banking industry is a sub-prime example. The Supreme Court’s majority denied class action status. In doing so, they affirmed a class-based struggle slowly tearing this country apart and discounted the over-arching legal arguments these women presented. It was a clear victory for Wal-Mart. Those women, defeated, earning minimum wage, are now forced to find attorneys and bear the cost of litigating individual lawsuits against an international retailer who has billions of dollars and throngs of attorneys.

Meanwhile, the U.S. Supreme Court has moved on to criminal justice, affirmative action, health care and voting cases. We need to know about these issues, as well. After all, the U.S. Supreme Court creates the law of the land. But, interest in the Court’s burgeoning docket hardly competes with holiday music, Christmas parties, travel plans, and, of course, shopping. Wal-Mart is expanding hours, cutting prices and providing employment. But, while standing in the check-out, impatiently waiting to purchase gifts, don’t forget the discount justice given to the women in Wal-Mart v. Dukes.

Gloria J. Browne-Marshall, an associate professor of Constitutional Law at John Jay College in New York City, is the director/founder of The Law and Policy Group, Inc., and author of “Race, Law, and American Society: 1607 to Present.”