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Sarah Crawford, Director of Workplace Fairness

From the desk of ... Sarah Crawford

Right Over Might: The Women of Wal-Mart Fight for Fair Pay

March 28, 2011 | Workplace Fairness

Cross-posted from the American Constitution Society.

Tomorrow, the Supreme Court will hear oral argument in Wal-Mart v. Dukes - the high profile class action case involving 1.6 million women who have worked at Wal-Mart. The Court is poised to decide whether or not the women can proceed as a class to challenge the systemic discriminatory pay and promotion practices of the country's largest employer. More than a decade after the women first filed their lawsuit, the Court's decision will determine if the women will finally get the chance to present the merits of their claims in court.

During ten years of litigation, the class has amassed an impressive body of evidence. Statistical evidence shows that women were receiving significantly less pay and fewer promotions than their male counterparts - despite better performance reviews, greater seniority and fewer disciplinary issues. Anecdotal evidence demonstrates a corporate culture of gender stereotypes and a lack of objective standards for making personnel decisions.

Before the class can get to the merits of their claims of discrimination, however, they must first convince the Supreme Court that the lower courts properly certified the class under Rule 23 of the Federal Rules of Civil Procedure. The Court has taken up the question of whether the class of women satisfy Rule 23(a)'s requirements of numerosity, commonality, typicality and adequacy, as well as Rule 23(b)(2)'s requirement that "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole."

In this hotly anticipated case, some have expressed concern about corporate bias in the wake of decisions like Citizens United v. Federal Election Commission. This concern is not unfounded, but there is reason for hope. In recent employment decisions, the Court has delivered a string of victories for workers. In Kasten v. Saint-Gobain Performance Plastics Corp., for example, the Court held 6-2 that the Fair Labor Standards Act prohibits retaliation against workers who file verbal complaints of violations of the law in the same manner that the law prohibits retaliation for written complaints. In another recent case, Thompson v. North American Stainless, the Court demonstrated a tough stance on retaliation when it held that Title VII of the Civil Rights Act of 1964 prohibits employers from retaliating against third parties. Justice Scalia delivered the opinion of the Court in favor of an employee who was fired in retaliation for his fianc e/co-worker's complaint of discrimination. In Staub v. Proctor Hospital, Justice Scalia again delivered the opinion, concluding that an employer may be liable when the discriminatory bias of a supervisor causes an adverse employment action, even if the ultimate decision maker is not aware of the supervisor's bias. Unfortunately, because these recent pro-employee decisions involve individual plaintiffs, they may have limited implications for the women of Wal-Mart.

If Wal-Mart had its way, Betty Dukes - one of the named plaintiffs representing the class of women - would be litigating her case individually. The company's strategy is to divide and conquer. Employers are well aware that most employees face powerful disincentives to bring individual claims. Employees may be unfamiliar with their legal rights. Due to secrecy in pay and promotion decisions, they may be unaware that their rights have been violated. They may also fear retaliation or lack the time or money to pursue individual litigation.

For these reasons, class action lawsuits provide a critical vehicle for workers to vindicate their statutory rights and obtain meaningful relief. The National Partnership for Women & Families joined with the U.S. Women's Chamber of Commerce and California Women Lawyers to file an amicus brief in support of the class. Our brief cites critical reforms that have been achieved through employment class actions. Throughout our nation's history, this kind of legal action has played a key role in rooting out discrimination. In this case, we have a true "Betty v. Goliath" situation - and failing to certify the class could mean that discrimination against more than a million women could go unremedied.

With the future of class action lawsuits in the employment context uncertain, one thing about this case is clear. Tuesday will mark another milestone in the struggle for fair pay for women. Women in the U.S. are still paid an average of 77 cents for every dollar paid to their male counterparts, making it incredibly important that women like those working at Wal-Mart report cases of discrimination and seek widespread reform. The size and high profile nature of the case has no doubt raised awareness about pay discrimination, and advocates hope it will inspire more working women to challenge discrimination in their own workplaces.

Many people - women and men alike - are following the case closely, and are eager to show their support, because the case will have such important consequences for working women throughout the country. The National Partnership recently asked activists to share a message with the women of Wal-Mart. More than 2,000 men and women submitted passionate, moving words of encouragement. Some shared their own stories of workplace discrimination. Prior to tomorrow's argument, supporters and fair pay advocates will rally on the steps of the Supreme Court to stand with the women of Wal-Mart. With so much at stake for women and the families that depend on their incomes, the show of solidarity and increased awareness of the need for fair pay could not be more important.


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