A sharply divided Supreme Court ignored more than 40 years of established jurisprudence in its Wal-Mart v. Dukes decision, which severely restricts the ability of employees to fight discrimination as a class-action group. In a deeply misguided opinion, the majority ruled that the women of Wal-Mart cannot band together nationwide and stand up as one against the biggest retailer in the world. It’s hard to manage the court costs and find the courage to keep going. We only wish the women of Wal-Mart would not have to do that. Yet the high court decided they did not have enough in common to pursue a nationwide class-action suit, a sadly ironic twist for former employees of the great homogenizer of American retail.
The court’s decision was not related to the merits of the case, however, and the women of Wal-Mart are already planning how to proceed next, either individually or in smaller, reformulated class-action cases. In fact, Wal-Mart may rue the day it fought against allowing a single class-action case. The company’s gamble—that if it could throw up enough barriers, the women would quit—is not going to pay off, and the Goliath retailer may soon end up with more Davids than it ever wanted to fight.
Unfortunately, many other employee class-action cases are now destined to be stuck at a red light, while employers are getting the go-ahead to continue to rely on highly subjective gender discrimination practices, hurting women and their families. And this disturbing ruling extends beyond class-action certification, echoing other recent stories of institutions that were “too big” to be held accountable. First, the banks were too big to fail, and American taxpayers bailed them out even as they were losing their homes and jobs. Now, Wal-Mart is too big for justice, even though American women still face a persistent pay gap that not only undermines their families’ economic security but undercuts the nation’s recovery as well.
But American women will press on as we always do, emboldened again by a Supreme Court majority that just doesn’t get the realities of the modern workplace. Wal-Mart plaintiff Edith Arana’s moving story of her fight against discrimination drew big applause at AAUW’s recent national convention—an indication of our continuing support for the women of Wal-Mart.
We’ll also be looking into other options to deal with this wrongheaded decision. The court has been wrong before— as we know all too well —but our government is structured so that we can right those wrongs through other channels. Perhaps this decision will give Betty Dukes her own bill or motivate Congress to finally pass the Paycheck Fairness Act, which aims to stop unfair pay before it starts and came within a hair of passing last year. We’re sure the Obama administration and its multi-agency Equal Pay Enforcement Task Force will also be brainstorming to address this latest misstep from the court. This kind of injustice demands action.
Setbacks in achieving women’s equality aren’t new. Ever since women started claiming our rights and fighting for equal opportunity, the powers that be have tried to thwart our plans. Although we wish the Supreme Court had understood the need for women to band together and fight, this decision is just one more battle in the ground war women have been fighting for years. It’s just a chapter, not the end.
Lilly Ledbetter, the namesake of the Lilly Ledbetter Fair Pay Act, lives in Alabama. Linda Hallman is executive director of AAUW.
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