You are hereNew Deal 2.0: Wal-Mart v. Dukes and the Matter of Size

New Deal 2.0: Wal-Mart v. Dukes and the Matter of Size

March 28, 2011- Women’s History Month is a celebration of women’s progress and the American piece of this epic story began in Lawrence, Massachusetts, when 25,000 mill workers took to the streets to protest for better wages. One particularly memorable account from the Bread and Roses strike involves several women who surrounded a police officer, stole his gun and then his pants and then tried to throw him in a river. The officer was saved from an icy dunking by fellow members of the force (who were colluding with the mill owners to stop these fierce women from striking). Here in the U.S., we will best honor our sisters past and present by ensuring that women’s progress doesn’t come to a grinding halt on March 29th in the hallowed halls of the Supreme Court.

Tomorrow the Court will hear arguments in one of the most important civil rights cases in the country’s history. Their decision will pave the way for further progress or stop it dead in its tracks. In Wal-Mart v. Dukes, one million employees take on the largest public corporation in the world in a case that could cost the company $1 billion. But this case is about something much bigger than $1 billion; it is about whether or not any American citizen will have the ability to try to stop illegal bias in the workplace. In David v. Goliath, the Supreme Court will decide who gets the slingshot.

The case started when seven female employees of Wal-Mart figured out the corporation was paying men more than women for comparable jobs and was promoting men more often than equally qualified women. More than 100 women presented their personal cases of illegal bias and statistical evidence showed that the preferential treatment was true across the company — in every region and across job categories from entry level to management. As a result, District Judge Martin J. Jenkins determined — and the Ninth Circuit agreed — that the one million women who worked at Wal-Mart in the last decade should be treated as a “class” and as such be able to fight the world’s largest corporation together, rather than one at a time. Wal-Mart, which serves about 100 million customers a week, appealed, arguing that no one could manage a group of one million people and, because of that, these women could not argue their case as a single class. How will the Court decide and what will be the results?

Consider this — it is infinitely cheaper to pay off one employee (or bury her in legal fees) and to continue the illegal pay disparity than it is to pay all employees what they should have been paid all along. By limiting the ability of similar individuals to act as a group, the Court will diminish the individuals’ power to challenge a bigger (and richer) wrong-doer. It is only the ability to challenge illegal bias as a group that renders the action economically viable for the plaintiffs (and yes, for the lawyers who work for them). Similarly, it is only the threat of action by a group that makes illegal bias economically un-viable for a corporation.

As it happens, in matters of law and money, size does matter.

If the Supreme Court upholds the Ninth Circuit and agrees that “mere size does not render a case unmanageable,” regular Americans will be able to challenge illegal bias in the workplace. If the Supreme Court strikes down the Ninth Circuit’s decision, they won’t.

Slingshot or no slingshot?

With a slingshot you have a chance against Goliath, without it you have none.



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