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SCOTUS Hears Wal-Mart Case

SCOTUS Hears Wal-Mart Case

The Supreme Court heard arguments in the case of Dukes v. Wal-Mart, a historic class-action that alleges the retailer systematically discriminated against female employees in pay, promotion and other employment practices.

By all accounts the plaintiffs in the case have a steep hill to climb.  In order for the case to continue on as a federal class-action lawsuit, the legal and factual issues for all plaintiffs must share commonality–a minimum characteristic under the Federal Rules of Civil Procedure.  The central premise of the case is that Wal-Mart has a policy of maintaining a common “culture” that ensures uniformity throughout its thousands of stores while also giving local store managers unlimited discretion to decide workers’ pay and promotions.  According to the plaintiffs those two strains converge and result in company-wide lower pay and fewer promotions for female employees.

In support of these allegations plaintiffs have relied heavily on the use of “social framework analysis” that shows unconscious or implicit bias in the workplace.

But the Justices appeared skeptical of this evidence, let alone the plaintiffs’ reliance on it to join together the hundreds of thousands of class members.  Justice Kennedy, perhaps the bell-weather here, suggested that the plaintiffs were essentially making contradictory allegations and using this research to try and remedy that contradiction.  According to Justice Kennedy, plaintiffs appeared to argue both for a common policy and independent discretion.  How, Justice Kennedy wondered, could it be both?

Should the plaintiffs succeed before the Court it would be the first time when social framework analysis was able to articulate the “soft” discrimination women and minorities often face in the workplace–personal prejudices that create different opportunities and expectations.

But should Wal-Mart succeed in its challenge then what remains is not a verdict that the retailer failed to protect against unlawful discrimination.  Rather, a ruling in the retailer’s favor simply means that each individual plaintiff must proceed with her own case.  Such a ruling would no doubt discourage individual plaintiffs as the costs of pursing justice would far outweigh any potential monetary recover.

It is that denial of justice that Wal-Mart is going for.  They don’t deny women faced diminished opportunities and wages working for their company.  Instead, women should come to expect such situations given the persistent social and cultural bias against female employees.

And that right there is why this case is so significant.

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photo courtesy of monochrome via Flickr

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11:28AM PDT on Oct 24, 2012

Build an app i wish i know how, that tells a stores history with pay and who they give money to. add it to the coke brothers app. Women are 84 % the shoppers you would think companies would want to pay them more, but I know they don't.

1:53AM PDT on Mar 31, 2011

Thanks for the info.

11:02PM PDT on Mar 30, 2011

Thank you Jessica! You are an angel to be teaching and keeping us ALL informed!! Wake up people, "ignore your rights and they'll go away" isn't just a bumper sticker...

6:25PM PDT on Mar 30, 2011

Wal-Mart needs to re-evaluate.

5:27PM PDT on Mar 30, 2011

The large corporations are trying to ban Class Actions." If they succeed, individuals or even small groups will not be able to file suit since it would be too expensive. To get justice you must be wealthy. :-(

3:05PM PDT on Mar 30, 2011

I think they should have gone with individual cases or smaller groups.

For what it is worth...I don't shop there. For the most part much of what they have is made in China.

1:02PM PDT on Mar 30, 2011

The outcome won't affect my shopping habits. I still won't go in a Wal-Mart.

11:15AM PDT on Mar 30, 2011

GRRRR. I hate both Wal-mart and Target. I used to boycott Wal-Mart, but then I started boycotting Target too and then I started to hate Target more and in a small town you don't have much of a choice but to step foot in one of the two everyonce in awhile....but I guess I'll have to figure it out. GRRR> I hate you wal-mart! And Target!

10:31AM PDT on Mar 30, 2011

Target sucks too, by discriminating against gays. Michael's crafts donates to Republican's. Years ago there was a list that told you how blue or red a company was. I know Old Navy/Gap/B.Repub etc. are Blue. It pays to know what kind of company you are patronizing. I hope this brings more attention to what kind of company Wal-Mart is. Again never shop there unless I was absolutely desperate. Oh, but that's Wal-Mart's main market.

9:19AM PDT on Mar 30, 2011

Would never ever, ever, ever shop at Wal Mart. The founder is probably turning over in his grave at what this monster retailer has become. Sam was so proud of his "Made in America" slogan. I think Wal Mart will win, but then SCOTUS has already proven they are not for middle America. They've been bought and paid for by corporations.

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