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The Nation

Dukes v. Wal-Mart and the Limits of Legal Change

The Supreme Court yesterday unanimously slapped down the largest civil rights class action suit in history—on a dry technicality. Justices agreed that Dukes v. Wal-Mart, the ten-year-old sex discrimination lawsuit should not proceed as a class action because the lower courts had not followed proper procedure in certifying it. While the Court’s decision is discouraging, no one should imagine that it represents an end to the fight for justice at Wal-Mart.

Dukes represents an effort to redress a massive pattern of inequity at the nation’s largest private employer. Women were paid less than men in just about every position at the company, and promoted into management at far lower rates, despite higher performance evaluations than their male colleagues. No position was too minor to be exempt from male privilege—there were very few male cashiers, for instance, but those few were paid better than female cashiers. Departments were segregated, with women selling baby clothes and men selling electronics, and the predominantly male departments paid better. (Plaintiff Cleo Page was told that customers would feel more “comfortable” buying sports equipment from a man.) Lower courts had ruled that Dukes should proceed as a class action, and even Wal-Mart’s own lawyers had urged the company to settle, but the company was determined to keep fighting all the way to the Supreme Court—and obviously, had the resources to do so.

The Supreme Court ruling is a big victory for Wal-Mart, for large corporations everywhere hoping not to be sued, and, not least, for right-wing ideologues who hate to see the free market gummed up with disputes over fairness and social justice.

It’s a devastating defeat for the women who have spent years of their lives trying to change Wal-Mart through this lawsuit. Women like Betty Dukes, the lead plaintiff, a pastor in her Pittsburg, California church who has been telling her “David and Goliath” story to her congregation for years, hoping to inspire them to stand up to injustice in their own lives. Women who were given such astounding explanations for the inequality right before their eyes: Kathleen Macdonald, a clerk in Aiken, South Carolina, found out that her male co-workers were paid better—it was no secret, she says, “They bragged about it!”—and when she asked why, was told by her supervisor that “God made Adam first.” He did feel that some men take this prerogative to “an extreme—when they beat their women.”

The decision is also a defeat for workers and consumers everywhere who might have a beef with a large corporation—as it certainly sends the message that this sort of fight is getting tougher and tougher to win. It’s particularly dispiriting as a measure of our shared values: conservatives like Scalia were expected to back Wal-Mart, but even the supposed “liberals” on the court ultimately decided that business interests should trump the rights of workers.

But it’s not yet clear how definitive a defeat it is—while the justices all agreed that Dukes should not be certified, they disagreed on why. Justice Ginsburg argued in a partial dissent that Dukes could potentially have been certified if the lawyers had taken a slightly different strategy, and she disagreed with some of the majority’s most extreme contentions (like the ideas that there was no basis for a class action since Wal-Mart had no specific written policy discriminating against women—a bar so high that few class actions would ever reach it). More importantly, though, the Dukes ruling underscores the need for more and better organizing by workers and citizens. Change cannot come from the courtroom alone.

Intriguingly, the ruling comes amidst an impressive resurgence of organizing aimed at changing Wal-Mart. The United Food and Commercial Workers (UFCW), along with citizens in urban communities all over the country, has been working tirelessly to block the retailer’s plans to take over large cities like New York, Washington and Philadelphia. Far more prominent in these fights than ever before are the people who should have been in the forefront all along: Wal-Mart workers, some of whom have been speaking out against their employer in public hearings and at demonstrations. The UFCW has started a group called Wal-Mart Workers for Change, a workers’ center through which Wal-Mart workers can organize and pressure the company for better wages and working conditions without—prematurely—enduring grueling and costly battles for official union recognition.

Women—whether or not we work at Wal-Mart—are furious about this Supreme Court ruling. Imagine if the UFCW campaign tapped into the outrage of women all over the country. For a company already economically vulnerable—after all, in these tough economic times, the poor people that traditionally made up its customer base can no longer afford to shop at Wal-Mart‑some serious political opposition, and consumer disgust, might hurt even more than a lawsuit. It’s time to stop depending on the legal system alone.

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Liza Featherstone

Liza Featherstone is a contributing editor for The Nation and a journalist based in New York City.  She is the co-author of Students Against Sweatshops: The Making of a Movement (Verso, 2002) and author of Selling Women Short: The Landmark Battle for Worker's Rights at Wal-Mart (Basic, 2004).

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