The fate of the largest sex discrimination case in history, against the largest employer in the United States, now rests with a Supreme Court given to right-wing judicial activism. Walmart, the world’s biggest company, is currently facing a class-action lawsuit on behalf of hundreds of thousands of women who, the suit claims, have been paid less than male colleagues and routinely passed over for promotions. The company is arguing that these women don’t constitute a class, and that if they want to sue, they have to do so individually. So far, courts have ruled against Walmart. But yesterday, the Supreme Court agreed to hear Walmart’s appeal. Its ruling could have profound effects not just on the women of Walmart, but on the ability of all women to seek redress for sex discrimination. There is reason to be very worried.
“If you look at the pattern of the Roberts court, this looks like a textbook case of the kind of lawsuit that the conservative majority wants to kill off,” says Jeffrey Toobin, author of The Nine: Inside the Secret World of the Supreme Court.
The suit, Dukes v. Walmart Stores, Inc., was filed in U.S. District Court almost a decade ago. The lead plaintiff is Betty Dukes, an African-American woman in her late 50s who was repeatedly denied advancement despite glowing performance reviews, then demoted when she complained about discrimination. She’s not alone—more than a 100 current and former female Walmart employees have provided sworn affidavits telling stories of discrimination.
As Liza Featherstone reported in her book about the lawsuit, Selling Women Short, women make up over 70 percent of Walmart’s hourly employees, but only a third of its managers. (Among competitors like Target, the number of women in management is closer to 50 percent.) Women at Walmart have lower turnover rates and higher performance ratings than men. Nevertheless, as Featherstone writes, women at Walmart “earn less than their male counterparts in nearly every position at the company.” Sex discrimination, she says, was woven into the company’s insular, patriarchal corporate culture.
So far, the plaintiffs haven’t had a chance to argue the case on its merits. The battle, rather, has been over the narrower issue of what constitutes a “class” for the purposes of a class-action lawsuit.
“For women experiencing sex discrimination or other workers experiencing systemic injustice, if the Supreme Court supports the idea that a company is too big to be sued, that’s kind of horrifying for our democracy,” says Featherstone.
Walmart argues that the case involves too many women, in too many different jobs and regions, to comprise a single class. In 2004, a federal judge rejected Walmart’s argument, allowing the lawsuit to proceed. He wrote: “Insulating our nation’s largest employers from allegations that they have engaged in a pattern and practice of gender or racial discrimination—simply because they are large—would seriously undermine these imperatives [of the 1964 Civil Rights Act].”
Arcelia Hurtado, the executive director of Equal Rights Advocates, one of the co-counsels on the case, is publicly optimistic that the Supreme Court will come to a similar conclusion. “The facts speak for themselves,” she says. “If women can’t get a remedy in court because a corporation marches in and says we’re discriminating against too many women, therefore the lawsuit should not go forward, that would undermine our entire legal system. It makes no sense for the court to deny women the opportunity to litigate as a group when they’re being discriminated against as a group.”
But some court-watchers expect it to do just that. “One of the causes that is dearest to the Roberts court’s heart is limiting the exposure of corporations to large damage awards, and class actions are one way that corporations can be exposed,” says Toobin. “Class actions by definition are bigger cases than individual cases.” Though as Toobin notes, the Roberts court has hardly been sympathetic to individual sex discrimination cases, either: witness its five-to-four ruling against Goodyear employee Lilly Ledbetter in 2007, a result so egregious that it spurred Congress to pass the Lilly Ledbetter Fair Pay Act in 2009.
As in the Ledbetter case, if the Supreme Court rules against the women of Walmart, the effects could be far-reaching, making it more difficult for women and minorities everywhere to bring cases. Those working at big companies would have an especially tough time. Says Featherstone, “For women experiencing sex discrimination or other workers experiencing systemic injustice, if the Supreme Court supports the idea that a company is too big to be sued, that’s kind of horrifying for our democracy.”
Michelle Goldberg is a journalist and author based in New York. She is the author of the bestselling Kingdom Coming: The Rise of Christian Nationalism and The Means of Reproduction: Sex, Power and the Future of the World , which won 2008's J. Anthony Lukas Work-in-Progress Award and the Ernesta Drinker Ballard Book Prize. Goldberg's work has appeared in Glamour, Rolling Stone, The Nation, New York magazine, The Guardian (UK) and The New Republic. Her third book, about the world-traveling adventuress, actress and yoga evangelist Indra Devi, will be published by Knopf in 2012.