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Thursday, March 17, 2011

New report on Wal-Mart v. Dukes case details stakes and legal ramifications

Alliance for Justice today released a comprehensive report on the biggest case of the U.S. Supreme Court’s 2010-11 term. The report analyzes the stakes and legal ramifications of Wal-Mart v. Dukes, which concerns the right of as many as 1.5 million female Wal-Mart employees to hold the retail giant accountable for a pattern of discrimination that pervades every region of the giant retailer’s U.S. operations. Oral arguments in the case are scheduled for Tuesday, March 29.

The report, “Wal-Mart v. Dukes: Will the Supreme Court Protect Wal-Mart’s Discrimination Against Women?” is available for download here.

In addition to describing key facts in the case, the report explains its broader implications not just for employment discrimination claims, but for all class actions against major corporations. According to the report, “If our nation’s largest employer can avoid liability for systemic discrimination across its nationwide chain of stores, it will undermine the equal rights of all women workers. Moreover, any ruling by the Roberts Court that makes it harder for employees to bring a class action will remove an important safeguard that protects workers when they suffer discrimination.”

Among the information and themes explored in the report are:

  • Whether Wal-Mart’s size and the sheer number of its stores, managers, and employees will prevent class certification for widespread gender discrimination. The report addresses this core issue in the case from a number of angles. It tells the personal stories of Betty Dukes and Edith Arana, excerpts declarations of more than 110 other women who filed stories of discrimination, and recounts statistical evidence that shows pay and promotion disparities in each Wal-Mart region and for virtually every job category. The report also explains how Wal-Mart created a structure that led to an upper-level management that consists of nearly all men, while women comprise the vast majority of lower-level employees. Tellingly, Wal-Mart has among the worst records of American retailers for hiring women in management, with its management practices stuck where its rivals were in the mid-1970s. Moreover, it was warned about its discriminatory practices six years before this case was filed by a law firm that found that men were “five and a half times as likely as women to be promoted.” Wal-Mart ignored the firm’s advice and continued its practices.
  • What’s at stake for the women at Wal-Mart? Class actions play an essential role in holding corporations accountable for their widespread unlawful behavior, particularly when the harm suffered by each individual is small relative to the larger discriminatory picture. As a result of the relative disadvantages of filing claims, most plaintiffs who lose at the class certification stage do not pursue individual suits, which, even if successful, would not force Wal-Mart to change its discriminatory practices. Thus, as the report states: “If the Supreme Court limits access to a class action in this case, it will enable Wal-Mart to essentially rob its women employees of fair wages without serious legal consequences.”
  • What’s at stake for American workers? If the Supreme Court decertifies the class action here, it will make it more challenging for other plaintiffs to bring class actions. Depending on the Court’s reasoning, a decision favoring the corporation could make it harder for class actions to be filed against other large employers with many outlets, managers, and employees. The Supreme Court might also undermine the availability of back pay for injured class victims.
  • Will the Roberts Court buck or continue its pro-corporate trend? Powerful corporations like Wal-Mart have consistently enjoyed a home-field advantage when litigating in front of the Roberts Court. Since 1953, corporate interests won 42 percent of the time in the Supreme Court, but that percentage has jumped to 61 percent in the Roberts Court, with three of the seven most pro-corporate terms occurring during Chief Justice Roberts’ first five years. Just last term, the Roberts Court ruled in favor of the side supported by the U.S. Chamber of Commerce in 13 of 16 cases. The U.S. Chamber, and a host of other corporate interests, are supporting Wal-Mart in this case.

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