Today the Supreme Court heard oral argument in the case of Dukes v. Wal-Mart, a gender discrimination case brought by female workers of Wal-Mart, the nation’s largest private employer. The workplace discrimination case is a complicated piece of litigation and has already been in the courts for a decade.
The women suing Wal-Mart won an important victory in 2004 when a district court ruled that they could pursue their case as a “class,” representing all similarly situated women working for Wal-Mart.
Class action cases are permitted under very limited circumstances but they serve as important vehicles for groups of plaintiffs who may not have the means or resources to individually take on a deep-pocketed defendant in court. Because without a class action case, most of the plaintiffs wouldn’t be willing to go through the difficult process of filing a suit, class actions mean that corporations are forced to deal with cases they could otherwise ignore. In addition, class actions raise the possibility that a company will have to pay an enormous monetary award and even punitive damages—a powerful incentive to settle out of court.
So it’s no surprise that Wal-Mart appealed the district court’s decision to let this case proceed. The company’s appeal resulted in two split decisions by three-judge panels and a later 6-5 decision from the full 9th Circuit which, among other things, ultimately upheld the district court’s decision as to certification of the class. Wal-Mart appealed to the Supreme Court.
Wal-Mart is arguing that the women suing shouldn’t be designated a class for a number of reasons. The company claims that that the representative plaintiffs do not have claims typical of the whole class—a group which could involve from 500,000 to 1.5 million women with varying jobs and circumstances. Wal-Mart also argued that allowing the district court’s decision to stand would make the trial so unmanageable that it would violate Wal-Mart’s federal and constitutional rights.
The women pushing the suit point to company-wide practices that they claimed resulted in a culture of gender discrimination, including sexist nicknames, managers who held meetings at Hooters restaurants, and other disparaging conduct directed at women. They also point out that only a class action approach would work against a giant corporation like Wal-Mart. Individual claims of $1,100 per worker would do nothing towards ending the company’s discriminatory practices.
PFAW Foundation filed an amicus brief  in support of the female class along with 33 other civil rights organizations, including the ACLU and the National Women’s Law Center. The brief emphasizes that sex discrimination in the workplace remains a very serious problem in the United States and the systemic barriers to individual actions reinforce the need for a class action to address the kind of discrimination alleged in the case against Wal-Mart. Not surprisingly, corporate America and its many powerful trade associations, including the U.S. Chamber of Commerce, came out in full force in support of Wal-Mart, filing amicus briefs to protect their corporate interests.
While the outcome of the case remains unclear, it can be certain that there remains a pro-corporate bloc of the Court that will be sympathetic to Wal-Mart’s claims. Justice Scalia tipped his hand at his skeptical view of class actions last year in another case, suggesting that there was “national concern over abuse of the class action device.” The Court is also considering a case this term that would weaken the ability to bring class action lawsuits in the context of state consumer protection laws.
We’ll keep you posted as the case moves forward.