Dukes v. Wal-Mart and the Limits of Legal Change

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Liza Featherstone – The Nation – Tuesday, 21 June, 2011

The Supreme Court yesterday unanimously slapped down the largest civil rights class action suit in history—on a dry technicality. Justices agreed that Dukes v. Wal-Mart, the ten-year-old sex discrimination lawsuit should not proceed as a class action because the lower courts had not followed proper procedure in certifying it. While the Court’s decision is discouraging, no one should imagine that it represents an end to the fight for justice at Wal-Mart.

Dukes represents an effort to redress a massive pattern of inequity at the nation’s largest private employer. Women were paid less than men in just about every position at the company, and promoted into management at far lower rates, despite higher performance evaluations than their male colleagues. No position was too minor to be exempt from male privilege—there were very few male cashiers, for instance, but those few were paid better than female cashiers. Departments were segregated, with women selling baby clothes and men selling electronics, and the predominantly male departments paid better. (Plaintiff Cleo Page was told that customers would feel more “comfortable” buying sports equipment from a man.) Lower courts had ruled that Dukes should proceed as a class action, and even Wal-Mart’s own lawyers had urged the company to settle, but the company was determined to keep fighting all the way to the Supreme Court—and obviously, had the resources to do so.

Women—whether or not we work at Wal-Mart—are furious about this Supreme Court ruling. . .

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