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Supreme Court: Wal-Mart-Too Big to Sue

In a critical five to four vote, with Justice Antonin Scalia writing for the five justice majority, the Supreme Court made it much harder for the victims of discrimination to take class action cases against large employers. The US Supreme Court majority ruled that the largest sex-discrimination class-action suit in history, filed on behalf of 1.6 million women, cannot proceed as a class action.

Scalia sets up a nearly impossible standard, requiring that there be common elements tying together every one of the "literary millions of employment decisions at once," going beyond the "common questions of law or fact" required by the law. Justice Ruth Bader Ginsburg, writing for the four member minority of Justices Breyer, Sotomayor, and Kagan said there were more than enough elements to unite the claims and would have referred the case back to the 9th Circuit.

Eleanor Smeal, president of the Feminist Majority Foundation, stated, "First we have the government deciding that certain financial interests are too big to fail. Now we have the majority of the Supreme Court ruling that large employers are too big to sue concerning systematic employment discrimination. Without the ability to take effective class action lawsuits, women and minorities lose a major pillar in the fight to eliminate employment discrimination."

Equal Rights Advocates, who took this case for Betty Dukes ten years ago, pledged to fight on in seeking justice for these women. They are considering other avenues to pursue the fight. Congresswoman Rosa DeLauro, the chief sponsor of the Paycheck Fairness Act, pledged to develop legislation that will protect class action lawsuits like these and urged passage of the Act.

Plaintiffs in the case allege that Wal-Mart systematically discriminated through lower wages and fewer promotions for women employees; however, the Supreme Court did not rule on whether Wal-Mart discriminated against its employees.

In early March, the American Civil Liberties Union (ACLU) and the National Women's Law Center (NWLC), as well as 32 other organizations including the Feminist Majority Foundation, filed an amicus brief in the US Supreme Court in support of the class action suit against Wal-Mart for discriminating against its women employees in stores nationwide. More than 20 large corporations supported Wal-Mart at the Supreme Court, including Intel Corporation, Altria Group Inc., Bank of America Corporation, Microsoft Corporation, and General Electric Corporation.

The initial lawsuit was filed in 2001 by Betty Dukes, a former Wal-Mart employee, and six other plaintiffs who worked in 13 of the chain's 3,400 US stores. The women sought what could have been billions of dollars in punitive damages and back pay for gendered wage discrepancies for all female employees of Wal-Mart since 1998.

Media Resources: Feminist Majority Foundation 6/20/11; New York Times 6/20/11; Bloomberg 6/20/11; Statement of Rosa DeLauro 6/20/11; Kansas City Star 6/20/11

© Feminist Majority Foundation, publisher of Ms. magazine

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