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

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

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

The Supreme Court ruling is a victory for mega-corporations everywhere and a sign that justice for women and workers can’t be won in the courts alone.

Facebook
Twitter
Email
Flipboard
Pocket

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 Walmart.

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 Walmart’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 Walmart, 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 Walmart 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 Walmart, 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 Walmart 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 Walmart. 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: Walmart 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 Walmart 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 Walmart—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 Walmart—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.

Can we count on you?

In the coming election, the fate of our democracy and fundamental civil rights are on the ballot. The conservative architects of Project 2025 are scheming to institutionalize Donald Trump’s authoritarian vision across all levels of government if he should win.

We’ve already seen events that fill us with both dread and cautious optimism—throughout it all, The Nation has been a bulwark against misinformation and an advocate for bold, principled perspectives. Our dedicated writers have sat down with Kamala Harris and Bernie Sanders for interviews, unpacked the shallow right-wing populist appeals of J.D. Vance, and debated the pathway for a Democratic victory in November.

Stories like these and the one you just read are vital at this critical juncture in our country’s history. Now more than ever, we need clear-eyed and deeply reported independent journalism to make sense of the headlines and sort fact from fiction. Donate today and join our 160-year legacy of speaking truth to power and uplifting the voices of grassroots advocates.

Throughout 2024 and what is likely the defining election of our lifetimes, we need your support to continue publishing the insightful journalism you rely on.

Thank you,
The Editors of The Nation

Ad Policy
x