The People v. Wal-Mart

A pay discrimination case against Wal-Mart will affect future class-action suits, writes Sam Fulwood III.

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Wal-Mart shoppers use carts at a Wal-Mart store in Moutain View, California. A pay discrimination case against Wal-Mart begins today that involves by some estimates as many as 1.5 million women. (AP/Paul Sakuma)
Wal-Mart shoppers use carts at a Wal-Mart store in Moutain View, California. A pay discrimination case against Wal-Mart begins today that involves by some estimates as many as 1.5 million women. (AP/Paul Sakuma)

Since Wal-Mart’s founding in 1962 as a humble retailer, the Arkansas-based firm has grown exponentially into the nation’s largest retailer, employer, and corporation. Along the way it has repeatedly had to defend its operations against charges of unfair labor practices, which are well documented. Indeed, the big-box retailer has been in courts so often that Wal-Mart has set aside millions of dollars just to defend itself, according to the Walmart Watch blog by the United Food and Commercial Workers International Union. But nothing can compare to the current case before the U.S. Supreme Court, which begins today and dates back a decade.

Six female employees filed a lawsuit in 2001 that charged the firm with sex discrimination in pay and promotion policies. The women argued successfully before the Ninth Circuit Court of Appeals that they weren’t unique and that their claims should be bundled in a class-action suit that covers by some estimates as many as 1.5 million women who have worked at Wal-Mart since December 26, 1998.

Wal-Mart, seeking to stymie a suit that could be the largest corporate discrimination payday in the nation’s history, filed an appeal to the High Court that called into question the class-action nature of the suit. As The Washington Post noted, a ruling against Wal-Mart could affect more people than the number currently serving in the Army, Navy, Air Force, Marines, and Coast Guard combined.

Little wonder that Wal-Mart has put its legal team to the task of nipping this case in the bud. The oral arguments made before the Supreme Court today will be strictly procedural and not a determination of guilt or innocence in Wal-Mart’s policies. It is, in effect, a battle of high-minded legal theories and rule interpretations offered by expensive corporate lawyers. Before the workers’ discrimination suit may proceed, the Supreme Court will rule on the size of the class that may be included in the case.

Wal-Mart and its many business-oriented supporters argue that regardless of the merits of the core discrimination suit, large groups of people—in this specific case, hundreds of thousands of women in diverse stores and communities across the land—should not be allowed to press a broad and sweeping claim for monetary relief against a conglomerate employer.

Organized labor, civil rights groups, and other antidiscrimination advocates are concerned that low-wage workers will lose the ability join together to afford a fight against large, deep-pocketed corporations if Wal-Mart wins its appeal.

Suzette M. Malveaux, an associate professor of law at the Columbus School of Law at Catholic University, described the stakes of the Court’s decision as monumentally high. In her article, “Class Actions at the Crossroads: An Answer to Wal-Mart v. Dukes,” published recently in the Harvard Law and Policy Review, Malveaux observes the forthcoming ruling will determine “whether it will become more difficult for plaintiffs who seek monetary relief for systemic misconduct to meet the class action criteria. This is important because for many employees and others, a class action is their only meaningful access to the courts.”

At day’s end, Wal-Mart v. Dukes won’t settle Betty Dukes’s argument that the company systematically pays women less than men and promotes men to higher positions at a faster rate than women. The ultimate resolution to that claim will have to wait for another day and another series of courtroom arguments.

Still, this case is of great importance because it potentially establishes precedent for future class-action suits. If the devil is in the details, then the fine-point arguments in Wal-Mart v. Dukes must be decided before the women workers get their day in court against Wal-Mart and its top-ticket attorneys.

Sam Fulwood III is a Senior Fellow at American Progress.

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Sam Fulwood III

Senior Fellow

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