Wal-Mart v Dukes: Wal-Mart declared Too Big to Discriminate
Fair and Feminist
What’s going on with the Supreme Court decision in Wal-Mart v Dukes?
The Supreme Court decided today that Wal-Mart is Too Big To Discriminate. I previously wrote about the Wal-Mart v Dukes case, but I’ll summarize: The case was originally brought by 6 female employees 10 years ago, and today the Supreme Court has decided not IF the women were discriminated against, but rather IF the women can proceed with the lawsuit as a class-action suit (representing multiple people).
As NWLC‘s Fatima Goss Graves remarked on a conference call, what’s at stake here isn’t if these women were discriminated against–it’s “whether and how people can challenge broad-scale discrimination practices.” This isn’t just about sexism–it’s about discrimination of all kinds. Wal-mart pointed to hid behind a corporate anti-discrimination policy to evade responsibility for its employees’ discriminatory practices.
As we know, organizations themselves are gendered and raced, which means that discrimination is embedded in and created by the structures, practices, communicative acts, people, and artifacts of an organization. Sexism and racism are systemic, structural problems, not (solely) the result of individual biases. But Wal-Mart argued that they as a corporation couldn’t be held responsible for the fact that individual managers refused to promote women, made sexist remarks, and paid them less. In reality, the corporate suits of Wal-Mart designed the system that resulted in discrimination, and, it seems, did not respond to internal allegations of discrimination.
Wait–Wal-Mart has the same right to free speech as a person, but can’t be held accountable for its actions because it’s not a person, it’s a super huge company? It’s ludicrous that hundreds of employees were discriminated against and Wal-Mart won’t be held responsible because it is a BIG company.
Class Action–who cares?
NWLC’s Fatima Goss Graves, VP for Education and Employment, explained why class actions status is so important in discrimination lawsuits. First, class action suits about pay are important because women rarely know how much money they make compared to men. Many companies even have policies against discussing pay, and can retaliate against employees who do so. Class action lawsuits “lift the veil by subjecting an employer’s practices to judicial scrutiny.” As a class, the women of Wal-Mart would be able to gather information to see if there is a “systemic pay disparity,” she noted.
Second, class action lawsuits make it easier for employees to come forward without fear of retribution or public scrutiny. Third, class action status makes it financially possible for those making lower wages to bring a lawsuit. Attorney fees and time away from work are prohibitive for many working class people, thus justice is de-facto denied unless they can be part of a class action.
*It’s important to note that the merits of the case itself have not yet been heard–even after 10 years of fighting.*
So, what now?
The fight itself is not over. These women have options and thankfully, the courage, to continue to go after Wal-Mart. But a message has been sent–if your corporation can hide discrimination within discreet practices, then you won’t be held accountable for it.
Link to Report and to Access Background Hyperlinked Info and to Access Resources for Taking Action Against This Decision
"Text of the Supreme Court Decision
Democracy Now: 1.5 Million Female Wal-Mart Employees Lose Historic Sex Discrimination Case Before Supreme Court