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SCOTUS Hands Walmart Women Setback in Discrimination Case; Read Opinion, Dissent

| June 20, 2011
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The U.S. Supreme Court today halted a massive sexual discrimination class action lawsuit against Walmart, reversing a Ninth Circuit decision. The suit involved 1.5 million female employees, but the original plaintiff is Betty Dukes, who worked at a Pittsburg Walmart and filed against the company back in 2000.

From Daniel Fisher’s Full Disclosure blog on Forbes:

In a decision penned by conservative Justice Antonin Scalia and supported in part by the entire court, the majority held that bundling together such a diverse group of employees — present and former, management and labor — into a single class failed the test of commonality required in class actions. In other words, it was impossible for the plaintiffs to show that every single woman was the victim of discrimination when Wal-Mart left most decisions up to regional managers, many of them women, overseeing 3,400 individual stores.

“In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction. Respondents attempt to make that showing by means of statistical and anecdotal evidence, but their evidence falls well short.”

Justice Ruth Bader Ginsburg wrote for the minority dissent on the part of the opinion that set tougher standards for future suits.

KQED’s Joshua Johnson interviewed Brad Seligman, attorney for the Berkeley-based Impact Fund, representing the workers. Seligman, as might be expected, said the fight was not over. Edited transcript after the audio:

Brad Seligman, attorney for plaintiffs, on SCOTUS setback

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I want to close with, ‘Be careful what you ask for.’ Walmart didn’t want a class action, I’m not sure they wanted tens of thousands of lawsuits. -Plaintiff’s attorney Brad Seligman

What are you thoughts on the majority ruling?

The majority makes it much harder for individuals to join together in a class case to challenge pervasive sex discrimination or frankly any discrimination. It’s bad news and we’re very disappointed in it.

There’s a very important point here I want to make: The court did not rule that Walmart is not guilty of discrimination. It didn’t even address that. It made a procedural decision about whether there can be a class action or not.

In fact, I want to say this to all the women who worked at Walmart at any time since December 26, 1998: This case is not over. Under well-established rules, any women who had a claim of denial of equal pay or promotion into management at any time since December 26, 1998, those claims today are not too late to bring… We’ve already interviewed over 12,000 women around the country, we’re getting thousands more contacting us. We’ll be advising them of their rights to file claims with the EEOC, or to file lawsuits.


It sounds like the claims process through EEOC had been on pause and now it starts again?

That’s right. A class action automatically freezes the statute of eliminations, or the time period for filing the claim as long as the class action is pending. And that means because of the rules in the case, the class goes back to the end of 1998. So women who had any claims at any time since that time are not too late. Their claims have been frozen and they now have the statutory time periods to go to the EEOC or to file their own lawsuit.


So it sounds like instead of putting a flurry of cases through courts, that flurry is now going to move to the EEOC…

Both places. Some will get filed in court immediately and some with the EEOC. It’s certainly not over. Walmart does not have a free pass to discriminate and the women of Walmart are not done.


From reading the opinion, it sounded like you might have overreached and tried to get too large a group of women across too many different kinds of jobs; the class was too diverse to be taken as one block.

That’s certainly the opinion of Justice Scalia. We’re examining that opinion to see if there might be a narrower class that we can formulate going forward.

It’s also important that there was very vigorous dissent by four justices that pointed out that this class had enough evidence to go forward and the court was dramatically changing ground rules for class actions.

How is Betty Dukes?

She is resolute and ready to go. She understands this is a long fight. She has seen this case from day one as a long-term struggle and she’s ready. We’re all disappointed but Betty Dukes’ case is going forward. And she along with the rest of us are encouraging Walmart women to not give up hope.

The phrase I want to close with is “Be careful what you ask for.” Walmart didn’t want a class action, I’m not sure they wanted tens of thousands of lawsuits.

Here’s the statement from Wal-Mart:

We are pleased with today’s ruling and believe the Court made the right decision. Walmart has had strong policies against discrimination for many years. The Court today unanimously rejected class certification and, as the majority made clear, the plaintiffs’ claims were worlds away from showing a companywide discriminatory pay and promotion policy.

By reversing the Ninth Circuit Court of Appeals decision, the majority effectively ends this class action lawsuit.

Walmart has a long history of providing advancement opportunities for our female associates and will continue its efforts to build a robust pipeline of future female leaders.

-Gisel Ruiz, Executive Vice President, People, Walmart U.S.

Locally, George Martinez (D-Martinez) ripped the decision. Nancy Pelosi released a statement saying, “today’s Supreme Court decision sets back the cause of equality for women and for all Americans in the workplace and in our society. ” Both used the occasion to make a case for the Paycheck Fairness Act. That legislation goes in the opposite direction of today’s decision, proposing to make it easier for women to file class-action suits for pay discrimination based on sex.

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Category: Courts, Gender Issues, Labor, Legal

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