After the 5-4 decision, building a new case against Wal-Mart – National Consumers League

By Alex Schneider, NCL Public Policy Intern

In a landmark decision that is sure to have long-lasting implications, the Supreme Court ruled 5-4 that evidence of alleged gender discrimination as presented in the case of Wal-Mart Stores, Inc. v Dukes was not sufficient to allow for a class action lawsuit to continue.  Justice Antonin Scalia, who handed down the majority opinion, agreed with a lower court judge’s opinion that the 1.6 million women who filed the lawsuit “have little in common but their sex and this lawsuit.”

According to the majority, the major fault of the plaintiffs was the inability to show that Wal-Mart headquarters was communicating ‘common direction[s]’ to managers that gender discrimination and bias in promotions was justified.  (The entire decision is available from the website of the Supreme Court.)

But in her dissenting opinion, Ruth Bader Ginsberg rejected the idea that Wal-Mart headquarters was blameless.  Based on available evidence, she wrote, “gender bias suffused Wal-Mart’s corporate culture.”

According to the plaintiffs, of the few male cashiers at Wal-Mart, most were better paid than female cashiers.  And in departmental assignments, which determine pay, women were tasked with selling baby clothes while men worked in the better paid electronics or sports departments.  The Impact Fund representing some of the plaintiffs said that women held only 14% of management positions in 2001.  As Ginsberg cited, one manager reportedly told an employee that “[m]en are here to make a career and women aren’t.”

A controversial outcome

For the National Consumers League and other consumer and worker rights groups that have advocated against gender discrimination, this verdict proves disheartening.

In a blog post written some months back, NCL Executive Director Sally Greenberg explored the implication of the case: “The Wal-Mart case gives the issue of “wage disparity” a woman’s face and in so doing, helps other women, particularly low-wage women earners, to see that positive results can come from their struggle to achieve equal rights in the workplace. This case is a critical bellwether for women in workplaces all over the nation.”

Liz Featherstone emphasizes many of the same themes in a post on NPR’s website, telling of “women like Betty Dukes, the lead plaintiff, a pastor in her Pittsburg, California church who has been telling her “David and Goliath” story to her congregation for years, hoping to inspire them to stand up to injustice in their own lives.”  As Featherstone puts it, “Women — whether or not we work at Wal-Mart — are furious about this Supreme Court ruling.”

Moving forward, a decade later

Since 2001, the plaintiffs have tried to bring this case before a jury, only to have their hopes of success shattered ten years later even before a hearing on the merits of the case.  As noted in the Wall Street Journal, Wal-Mart persevered in the end, having chosen not to follow the advice of its lawyers to settle the case.

The verdict of the Supreme Court in the case is final, and while views of the decision differ widely, forward thinking is necessary.

Wal-Mart has not faced its final test.  While the ruling makes legal proceedings difficult especially given the costs to individuals of filing lawsuits as well as the difficulty of proving wrong-doing after so many years, lawsuits will move forward and Wal-Mart may still be found guilty.  With 1.6 million workers affected and a potential $1,000 loss per worker (according to the New York Times), successful lawsuits could result in over $1 billion in payouts.

But in the end, the final verdict lies with consumers.  After ten years, Wal-Mart claims to have cleaned up its operation and to have increased the representation of women at all levels of management. That’s a good start.  But Wal-Mart should make amends, settle claims, and ensure that those who acted in a discriminatory fashion no longer have a place at the company.

Making amends isn’t easy, and it isn’t cheap.  But it is the right thing to do.  Until then, consumers who are angry with Wal-Mart can show they aren’t willing to give in to its policy of denying that discrimination existed at its stores.  There are ‘low prices’ to be found elsewhere, and consumers don’t have to give Wal-Mart their business.