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Wal-Mart Decision Begs For Paycheck Fairness Act

Wal-Mart Decision Begs For Paycheck Fairness Act

For over ten years Wal-Mart has fought back against women who claim the retailer discriminated against them not by defending their actions or their policies, but by challenging the rights of the women to bring their claims in court.  And it’s a strategy that paid off.

The Supreme Court’s decision in Wal-Mart v. Dukes focuses on a seemingly narrow procedural issue, that is, whether or not the sex discrimination claims of over one million former female employees are “common” enough in injury and allegations to join them together in one large class action.  But the conservative majority, authored by Justice Scalia, tips its hand to the larger substantive and cultural issues surrounding a growing and  evolving hostility by the Justices towards the rights of individuals in general and the rights of working women in particular.

To begin with, the district court’s decision to certify the class was entitled to deference on appellate review.  Not surprisingly, the Roberts Court gave it none, a point raised by Justice Ginsburg in her dissent.  Also, the decision creates new, burdensome hurdles under Rule 23(a), hurdles not found in the language of the rule but, like its decision in Citizens United, the conservative majority reached until it was able to justify its new legal standard.

The conservative majority also attacks the statistical and anecdotal evidence used by plaintiffs to bolster their claims, holding that it was not sufficiently persuasive to amount to anything other than mere coincidences and accidents of potentially unlawful treatment.

However, the vast majority of the plaintiffs actually did allege common claims and show evidence of common injury–a task not easy to do in a a pay discrimination case where most direct evidence of discrimination will be lacking due to pay secrecy policies that allow employers to keep that very evidence confidential.  Ultimately, whether that evidence was persuasive as to discrimination was not the issue before the Court.  Instead, the issue was whether that evidence could tie these plaintiffs claims together.  And it could have.

The fact that the majority conflates these issues to get to its holding illustrates the deep bias infecting the Roberts Court.  It’s a bias that wants the federal courts to be the protector of the powerful rather than the vindicator of the oppressed and it has acted on this bias specifically by erecting these kinds of unnecessarily burdensome procedural requirements for individuals to bring claims.

But there is something that we citizens can do.  To start with, you can join the Nation Women’s Law Center in rallying in solidarity with the Women of Wal-Mart.

You can also urge Congress to pass the Paycheck Fairness Act and end pay discrimination once and for all.  Congress did this with Ledbetter and can do it with Dukes.  And given the temperament of the Roberts Court, that may be our only real solution.

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183 comments

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1:25PM PDT on Mar 17, 2013

Laura...You are absolutely correct. Wally World needs to act like they really are an American company, and NOT some fly-by-night sweat-shop, from BFE!! I worked for them, short as it was, and I can attest that there is major unfair labor practices, going on within that company. The CO-Manager I was under, thought he was Gastapo, and belittled all under him, white, black, purple, or green, he did not care. Sam Walton had a good idea, whoever is running the show now, needs to be knocked down a few pegs, because believe it or not, they are NOT God. In reality, they very much need to be shut down, NOW. They are killing the little guy, the economy, and importing crap from over-seas. They think they have the only jobs out in the world, and can take advantage of people who need work. There is a whole world out there with better jobs that will offer better pay, as well as better working conditions, along with ZERO "IN YOUR FACE belittlement", from the management.

Take your junk and go peddle it elsewhere, us real Americans, do not need, or want you here in our country. Some day very soon, all of your money being thrown at the labor problems will mean nothing, and you will have a real problem, when Americans push back, and squash like the vermin, that you really are.

SSGT L.C.M. U.S. Marine Corps (Ret).

6:16AM PDT on Mar 17, 2013

Wal-Mart should treat their workers like humans and give them their paychecks. They should also let them spend their holidays with family members they don't see very often, instead of making them work on Thanksgiving Day and Black Friday. Black Friday also needs to go. It is not right that we should go out and buy more stuff mere hours after celebrating what we are already thankful for.

10:34AM PST on Dec 6, 2011

To Vernon C.

So in your line of thinking only someone with a college degree is actually working, Let's talk about this, as everything you rely on in your life requires work to be done and someone needs to do this work, most of it back braking work. Physical labor has no value to you??? your life as you know it would come to a screeching halt without all those people doing physical labor, but you don't think they deserve a living wage, so what is your solution? perhaps slavery right??? I'm sure you would be fine with that.
Also there are plenty of jobs that takes years to learn, take heating and A.C. for instance years ago there were no trade schools to teach this so it took years of on the job training to learn, but yet the pay is nothing to talk about, and this is real work, not sitting behind a desk, sleepless nights are common in construction as your body is sore from real work, something you apparently have never done, hence the outward hostility and uncaring attitude towards anyone that does actual physical work. People like you sicken me and you and people like you are the reason the world is the way it is. you think your so much better then everyone else, yet nothing you have would exist if it were not for people that actually worked.

Here is an idea, why not try doing some of these jobs you claim people should do for almost nothing, perhaps it would give you a better perspective on the plight of your fellow man. Oh and let me guess, you must be another one

10:06AM PST on Dec 6, 2011

My Wife and I stopped shopping there years ago, they sell garbage and there prices are not that great, you are better off spending more and getting something that will last, it ends up cheaper in the long run.

10:34AM PDT on Aug 8, 2011

thanks.

10:55AM PDT on Jul 22, 2011

I'll stop shopping there for a good while, perhaps it will help, but putting the brakes on wal-mart is something people should have looked at years ago, to little to late.

2:55PM PDT on Jun 28, 2011

I haven't shopped at Wal-Mary in years and probably never will. The owners stand for everything I'm against and nothing that is right in my mind. I hope others will stop shopping at Wal-Mart, I think that's the only way to make them understand we don't like how they run their business and treat their employees.

2:22PM PDT on Jun 24, 2011

Boycott Wal-mart! Recall/vote out every congressman/woman with an "R" next to his/her name.
Walmart, Scott Walker, and weasel teabaggers should all end up in the sewer, from whence they came! Every republican governor was a plant for the ultra crazy conservative teaparty agenda, who lied to the people to get elected. Now we'll vote them all out! They had their chance and blew it. They are more interested in taking away rights from women, children, the Middle Class THAN creating jobs. But no no no they can't have jobs because if the economy gets better, THEY LOSE! So the policy is say no to everything and prevent big corporations from hiring. Damn them. They should rot in hell!

3:51AM PDT on Jun 24, 2011

Stephen

You also attacked Esther about her views but I also tend to agree with her. I do not see any unfairness at all. It is just business, & it is business that benefits the entire country. You speak about trade with China. Absolutely nothing wrong with that. If the US have a trade agreement with China why not use it to bring low cost to customers who cannot afford to buy the higher priced items. Right now, everyone is screaming about how high prices are. The inflation. But you cannot have it both ways. Walmart, K-mart & thos other corporations have a system that works for them & for the people who cannot afford to shop at the high-end stores. You & some others may be able to afford to avoid these stores, but others depend on them. It have nothing to do with supporting China. What type of car do you drive? Is it american made?

More money go to Japan every year than to China. But until American manufacturers do their logistics & understand that the customer buy to suit their pocket & it is the retailer who MUST satisy the customers' demands, then it make no sense arguing about 'trade agreements'.

3:31AM PDT on Jun 24, 2011

CONT'D

(Didnt realised that I reached my character limit. Careto really have to change back the format where you can see whan you have reached your limit. This is nonsense that they have done)

So to continue.

...But for low-level employees at these corporations to get these large wages, it would have huge repercussions for the country. Massive layoffs is just one, & not only at those franchises, but at most other businesses, as employers have to keep the playing field a certain distance apart. I mean if I have a Masters degree & work for Chase-Manhattan, no way am I going to have a high school drop-out at walmart making even close to my salary after all the hard work, sleepless nights & sacrifices that I put in to achieve that degree. Chase must increase my salary. So for the bank to pay me & my colleagues more money, they have to cut expenses too.

So it really is not as simple as you all are making it appear to be. If you want to make money, put in the work, get that education & those papers, or open your own business. But I certainly cannot support increased bottomline salaries when it will only create unemployment, high cost of merchandise, & economic recession.

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