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Dukes v. Wal-Mart and the Importance of Class Action Lawsuits in Addressing Systemic Sex Discrimination in the Workplace

By Jennifer Clark and Ariane Hegewisch

The Supreme Court heard arguments on Tuesday to decide whether the lower courts rightly certified the one million or more women at Wal-Mart as a class. According to Wal-Mart’s own salary data, women earn on average $1,100 per year less than men, differences that cannot be explained by experience or performance, and women are much less likely to get promotions than men.

An unprecedented number of amicus curiae (or ‘friend of the court’) briefs were submitted to the court, from groups as varied as the Chamber of Commerce, the NAACP, and the American Sociological Association, as well as the Institute for Women’s Policy Research. Below is a roundup of resources that break down what is at stake, not just for the million-plus women affected by this specific lawsuit, but for the country’s ability to address systemic employment discrimination.

New Research

Key to the Wal-Mart case is not just whether the class should be certified, but on which basis it should be certified. The lower courts certified the case on the basis of ‘injunctive relief,’ which asks primarily for changes to personnel policies and practices to prevent future discrimination; it does not ask primarily for monetary damages (although the women would still be entitled to get back pay for any discrimination they suffered).  This approach is what Wal-Mart and its proponents take issue with. They argue that if there was class certification, then the certification should be on the basis of monetary damages—a procedure that requires, as it happens, a much higher burden of proof than certification on the basis of injunctive relief. Wal-Mart also claims that class certification is not necessary in the first place, because if there were discrimination anywhere, Wal-Mart reasons, then it could be tackled just as effectively by each woman suing Wal-Mart on her own.

IWPR's new report on sex and race discrimination in the workplace.

Ending Sex and Race Discrimination in the Workplace: Legal Interventions That Push the Envelope, a new report released yesterday from IWPR, finds otherwise. The report reviews injunctive relief in over 500 court-supervised employment discrimination settlements—also known as consent decrees—involving alleged sex and/or race discrimination in employment. The report finds that class action lawsuits are much more likely than other settlements to introduce changes to make a long term and sustained impact on discrimination. For instance, over 70 percent of certified class action settlements, compared to five percent of other settlements, mandate the introduction of objective and transparent criteria for job assignments and promotions. Lack of posting of promotion opportunities, or of criteria for being admitted to the training programs that were essential requirements for promotions, is a key complaint by women at Wal-Mart. More information on employment discrimination consent decrees are available on IWPR’s website.

Selected Amicus Briefs

In support of the Respondents (Betty Dukes, et al.)

In Support of the Petitioner (Wal-Mart Stores, Inc)

Around the Web

The National Women’s Law Center argues that Wal-Mart is not too big to be held accountable for employment discrimination. At AAUW, Holly Kearl outlines the basics of why the Wal-Mart case matters. On the National Partnership for Women and Families (NPWF) blog, NPWF Director of Workplace Fairness Sarah Crawford stresses the importance of this case in the efforts to achieve fair pay. On Huffington Post, Martha Burk, director of the Corporate Accountability Project at the National Council of Women’s Organizations, provides some numbers on Wal-Mart’s gender bias.

Jennifer Clark is the Development Coordinator at the Institute for Women’s Policy Research.

Ariane Hegewisch is a study director at the Institute for Women’s Policy Research. Her most recent report is Ending Sex and Race Discrimination in the Workplace: Legal Interventions That Push the Envelope.