Wal-Mart v. Dukes : The Supreme Court's Big Case Threatens the Ability to Fight Corporate Misbehavior

What's it like to be a female employee of Wal-Mart, the world's biggest retailer?

According to Betty Dukes, it's frustrating, as well as economically and psychologically debilitating. Ms. Dukes was an enthusiastic Wal-Mart employee, eager to work her way up from store "greeter" to a position in management. But after years passed watching male colleagues move up and finding no opportunities for her own advancement, she discussed her concerns with a district manager. The result was a pattern of retaliation that eventually led to a demotion and pay cut -- and the biggest sex discrimination case in history.

It turns out Ms. Dukes wasn't alone. When a woman with a master's degree who had worked at Wal-Mart for five years asked her department manager why she was paid less than a 17-year-old boy who had just been hired, she was informed, "You just don't have the right equipment... You aren't male, so you can't expect to be paid the same." Another female employee was informed that a male employee got a bigger raise then she did because he had "a family to support." Another was told that men would always be paid more than women at Wal-Mart because "God made Adam first, so women would always be second to men."

These are galling stories, of course, but were they isolated incidents of individual sexism, or did they represent a pattern of long-standing, systemic behavior across the entire company?

The answer to that question is at the heart of Wal-Mart v. Dukes, the biggest case of the current term of the United States Supreme Court, and which will be argued tomorrow.

In every category of salaried management at the company, women are significantly underrepresented and are paid consistently less. To move up in Wal-Mart, employees need a "tap on the shoulder" from upper-level management, which is overwhelmingly male and stubbornly protective of a corporate culture that demeans women.

Wal-Mart insists the company is so large and decision-making by individual managers is so decentralized that it can't be held accountable. But in a corporation where an environment hostile to women is willfully perpetuated in everything from discouraging women from applying for positions in departments like sporting goods or hardware to holding meetings at strip clubs, the fact that store managers have discretion just means that their boy's-club biases, which are consistently rewarded and reinforced, have free rein.

In fact, Wal-Mart had a far lower percentage of female managers in 2001, when the suit was filed, than their closest competitors had in 1975.

But what makes this case so important for all Americans is not just the injustice done to hundreds of thousands of workers, it's the desire by Wal-Mart and the corporate powers supporting their case, including the Chamber of Commerce, to restrict the ability of the women harmed by these policies to band together as a class and fight a unified battle in court. If Wal-Mart succeeds, not only will women at Wal-Mart be unable to change pay and promotion disparities, but future lawsuits related to employment discrimination, civil rights, antitrust violations, and consumer protection will be significantly hampered, discouraging cases brought by large groups of people against broad-based corporate malfeasance.

Class actions, especially those that involve large number of employees seeing back pay, are a crucial tool for holding corporations accountable for widespread bias (or misbehavior of any kind), especially when the harm done to one person, like Betty Dukes, is small relative to the bigger picture of discrimination. Corporations want each individual to fight it out on his or her own, case by case, David vs. Goliath style. That way, broad patterns of corporate wrongdoing would remain invisible because legal discovery would be limited, and company-wide statistical evidence may be inadmissible. Even if the corporation ultimately lost dozens of individual cases, remedies would be fundamentally inconsequential. Plus, as the Supreme Court has previously recognized, lawyers will be deterred from taking such legal actions because the potential rewards are tiny and the costs of litigating against massive corporations are huge. Because of these factors, class actions are essential tools for everyday Americans seeking justice.

Ms. Dukes has argued that because every woman who has worked at Wal-Mart has been disadvantaged by a company-wide pattern of behavior, they all are entitled to force Wal-Mart to change its policies and award back pay to those who have faced discrimination. For class actions to work as mechanisms for delivering justice and deterring corporate misbehavior, the defendant must be compelled to face the financial consequences inherent in compensating the actual number of people who have been harmed, no matter how many. If the Supreme Court rules that classes like this are improper, though, the entire class action concept will be severely weakened. Given the inclination of this Court to favor big business interests, many are deeply concerned that once again the legal system will be reconfigured to favor the powerful.

A complete summary of the issues at stake in the case is available in Alliance for Justice's report, Wal-Mart v. Dukes: Will the Supreme Court Protect Wal-Mart's Discrimination Against Women?