Disappointed in Wal-Mart v. Dukes RulingJune 20, 2011
AAUW is deeply critical of today’s U.S. Supreme Court’s sharply divided decision in Wal-Mart v. Dukes. Although the high court did not rule on the merits of the case, this misguided decision prevents the women of Wal-Mart from taking on America’s largest private employer as a nationwide class-action group, leaving each woman to file her claim individually or perhaps in smaller, reformulated class-action groups.
Named plaintiff Betty Dukes said in a conference call just hours after the decision, “I am disappointed that we were not able to proceed forward as a class action collectively. … We will fight one on one [and] we will persevere, even though we did not get the ruling we hoped for. We are still determined to move forward. … I believe the truth will come out on the merits of the case, and then we can go forward.”
Another named plaintiff, Christine Kwapnoski, asserted in the same conference call, “I will still be heard, I will just be saying it differently. …I’ll be saying it individually. …We’re not done with Wal-Mart yet.”
In the ruling, the Supreme Court chose to ignore more than 40 years of established jurisprudence and severely restricted the ability of workers to fight discrimination together in a class action. Essentially, the court’s extremely conservative decision gave great weight to the mere presence of a corporate anti-discrimination policy, even though it seems that the policy was routinely not followed. This decision appears to give a red light for future employee class-action cases and a green light for employers to continue to use highly subjective pay and sex discrimination practices.
“The Supreme Court says the Wal-Mart case is ‘simply too large.’ Maybe that’s because — from the corner office to the corner store — gender discrimination is widespread,” said AAUW Executive Director Linda D. Hallman, CAE. “The court ignored most of the evidence, a disturbing development for other fair pay and discrimination cases. What a missed opportunity to warm up the chilly climate many women still experience in the workplace.”
This disappointing decision comes just two days after Edith Arana, a named plaintiff in the case, and her attorney Arcelia Hurtado, executive director of Equal Rights Advocates, spoke at the AAUW National Convention. The women spoke as part of A Conversation on Justice, a session on workplace gender discrimination that took place on Saturday, June 18, at the Renaissance, Washington, D.C. Hotel. CSPAN filmed the session, which aired this morning.
While the ruling does not determine whether Wal-Mart is guilty of gender discrimination, it will have far-reaching effects on class certification in workplace discrimination lawsuits.
AAUW strongly believes in protecting the rights of Americans to bring appropriate class-action suits against discriminatory employers. Such cases ensure that all affected workers can right the wrongs against them and stand together in the face of corporate misconduct. Sometimes, class actions are the only way to force a company to change its unfair practices. Class actions also serve as powerful deterrents to keep other employers from engaging in the same practices.
“Wal-Mart is not off the hook. Nothing in this opinion changes the legitimate and timely claims of women workers at Wal-Mart,” said AAUW Director of Public Policy and Government Relations Lisa Maatz. “The Supreme Court has been wrong before — just ask Lilly Ledbetter. AAUW will be looking at all the angles in this case, and we still have a range of options available to right yet another Supreme Court wrong. This case is not over any more than the fight for pay equity is over.”
Any Wal-Mart and Sam’s Club workers who feel they have faced sex discrimination should contact walmartclass.com or Equal Rights Advocates. As Dukes stated in today’s conference call, “I am Betty Dukes, and my voice has been heard, but I am not the only Betty Dukes in this country. There are many, many more, and they need to contact us and let their voices be heard.”
“AAUW’s resolve will not be shaken by this decision, and this case is not over,” said Hallman. “We will continue to stand 100 percent behind the women of Wal-Mart as they pursue what’s only simple fairness.”
If you’re like me and are upset about this ruling, you can take immediate action by attending one of the many rallies that are planned for tomorrow around the nation. I’ll be participating in one outside the Supreme Court in Washington, D.C., from 11 a.m. to 2 p.m.
You can also take action by donating to the Legal Advocacy Fund and designating your donation to case support.
Already, AAUW’s Legal Advocacy Fund provided case support and signed an amicus brief for the plaintiffs in the case. Thanks to AAUW funds, lead plaintiff Betty Dukes and the other named plaintiffs, including Edith Arana, were able to come to Washington, D.C., to attend oral arguments at the Supreme Court in March.