Tag Archives: WVFC

Supreme Court Preview: Women and ‘The Wal-Mart Way’

Doris Dukes was a cashier at WalMart when she realized that “The Wal-Mart Way” did not include clear, consistent rules for who gets promotions in the stores. She called a lawyer — and became, more than ten years ago, the lead plaintiff in Wal-Mart v. Dukes, a class action sex-discrimination lawsuit against one of the world’s largest corporations. As the New York Times pointed out in December, “The suit now speaks for more women than the combined total of active-duty personnel in the U.S. Army, Air Force, Marines, Navy and Coast Guard.”

Tomorrow, March 29, the Court will hear oral arguments in the case. In many ways, the stakes could hardly be higher.

WalMart is asking the Court to strike down two major decisions by the Court of Appeals, last year, in California. The Ninth Circuit found that Dukes, the 62 other named plaintiffs, and reams of statistical and anecdotal data had demonstrated that Wal-Mart’s well-known diversity policies had not overcome a corporate culture and associated practices that have systematically made it harder for women and people of color to advance in the company.

Ledbetter redux?

Among those practices are company-wide rules against discussing compensation, which can lead to an employee never even knowing that her pay is significantly lower than her white/male peers. A similar rule was at the heart of the infamous 2007 Supreme Court decision Lilly Ledbetter v. Goodyear Tire & Rubber Co. (550 U.S. 618), which in effect told Lilly Ledbetter that she had no redress when she learned too late that she and other women had been discriminated against. As WVFC’s Faith Childs observed in early 2009, after the decision “lower courts around the country have been busy deepening its effect, turning away suits charging discrimination based on sex, race and disability.” While that decision was reversed in part by the Lily Ledbetter Fair Pay Act, signed in 2009 by President Obama, that bill didn’t really fix the problem. More systemic redress for women was contained in the still-stalled Paycheck Fairness Act, which has been blocked in the Senate partly due to provisions that would make it easier for women to obtain legal damages from corporations. Barring such legislative relief, Wal-Mart v. Dukes may set the tone for the next few decades.

The attorneys who joined Doris Dukes’ case to hundreds of others spent ten years assembling their case. They found women at multiple levels of the hierarchy in hundreds of Wal-Mart stores who talked of being told women should stay home with their kids, that men “needed” management jobs more, and that if women were paid less it was simply that they weren’t aggressive in asking for raises. Counsel also secured salary and promotion data that demonstrated that whatever one thinks of this or that practice, its result is unmistakable:

Too big to sue?

This week, the Court will not be asked to evaluate the specific antidiscrimination claims of Dukes and her co-plaintiffs, but whether the case itself is legitimate. Wal-Mart’s briefs state that the class’s incredible diversity means that it’s not a true class, since all they share is gender; they also claim that the case violates specifics of the laws governing class action, which have been significantly narrowed since landmark cases such as Brown v. Board of Education. And the sheer size of the class, they maintain, makes crafting any remedy near-impossible and damages that would threaten to bankrupt the defendants. The company maintains that the large number of its stores, managers, and employees means that pay and promotion decisions “turn[ed] on decisions made by individual store managers,” without the commonality among class members required for class certification. Hundreds of companies and organizations filed briefs in support of Wal-Mart’s challenge, including Intel, Costco, the Equal Employment Advisory Council, Pacific Legal Foundation, Altria Group, Inc., Bank of America Corporation, Cigna Corporation, Del Monte Foods Company, Dole Food Company, Inc., Dollar General Corporation, Dupont Company, Fedex Corporation, General Electric Company, Hewlett-Packard Company, Kimberly-Clark Corporation, McKesson Corporation, Microsoft Corporation, NYSE Euronext, Pepsico, Inc., Tyson Foods, Inc., United Health Group Incorporated, United Parcel Service, Inc., Walgreen Co.and Washington Legal Foundation.

Dukes and her co-plaintiffs counter that the class’ diversity is its strength, and that they can show that “sex discrimination at Wal-Mart was the inevitable byproduct of a strong and centralized corporate system that originated in the company’s Home Office in Bentonville, Arkansas, and permeated each of the company’s stores in the United States.” In support of Dukes for the Court were the U.S. Women’s Chamber of Commerce, the National Partnership for Women & Families, National Women’s Law Center, NAACP Legal Defense and Educational Fund, Inc., National Association for the Advancement of Colored People, Leadership Conference on Civil and Human Rights, AARP, Disability Rights Education and Defense Fund, Inc., Latino Justice PRLDEF, Asian American Justice Center, Asian Law Caucus, Lawyers’ Committee for Civil Rights Under Law, and Public Citizen, among others.

If the Court agrees with Wal-Mart that there’s no legitimate class action, Dukes supporters say, this will make it much harder to take on employment discrimination. Marcia Greenberger of the National Women’s Law Center (above left) told an American Constitution Society briefing on the case last week that the impact would not be limited to women: “Older workers, workers with disabilities, workers of color — all would find it harder to make their employers accountable,” she said.

And justice for all?

No one’s placing bets yet on the Court’s decision in June. Tomorrow’s oral arguments promise to be fascinating, given that most of the current court decided Ledbetter in 2007 and ruled for corporations’ rights in Citizens United in 2010 — including Antonin Scalia, whose recent comments declaring that women aren’t included in the Civil Rights Act have caused some to ask Scalia to recuse himself from Dukes.

However, the New York Times‘ Linda Greenhouse, looking at the current Court term, found some perhaps surprising stats: “Employees suing companies for civil rights violations have won all three cases decided so far… By wide margins, the court has rejected arguments put forward by corporate defendants in several cases. It refused to permit corporations to claim a personal-privacy exemption from disclosure of law-enforcement records under the Freedom of Information Act. It permitted a liability suit to proceed against an automobile manufacturer for not installing the safest kind of back-seat passenger restraint. And in a unanimous opinion on Tuesday, the court refused to throw out a lawsuit by investors alleging that a drug manufacturer’s failure to disclose reports that some patients using its cold remedy had lost their sense of smell amounted to securities fraud.” And no one is overlooking the fact that this is the very first such case to be decided by a Court that is, for the first time, one-third female — including, noted the Times‘ Adam Liptak, Justice Sonia Sotomayor, who voted to certify an even larger class action in an antitrust case involving eight million merchants, including Wal-Mart, when she was a judge on the United States Court of Appeals.

We’ll have a full popcorn bowl handy while we read the live blogs of the arguments. By all means, let’s comment on them together below — and then place our bets on the outcome in June.

(Originally posted at Women’s Voices for Change.)

missing cairo

Like everyone else, I’ve been mesmerized this whole month by events in Cairo : by the stirring scenes from Egypt, careening from the January 25 Facebook-organized protests, with hundreds of thousands converging in Cairo, Alexandria and elsewhere to demand that their leader relinquish power after 30 years; to the harsh, government-inspired “Days of Rage” of February 2; to Friday’s “Day of Departure,”with redoubled protests and open negotiations for the future.

It’s 21 years since my only visit (sob!) to that part of the world. My Cairo memories are mostly blurred (nowhere near as vivid as those of the masseuse who befriended me at Sharm-el-Shaikh, or what I still call “the Pyramids of New Jersey”). I do remember its insane traffic and brutal smog, and like everyone else felt the reports of the smog clearing this week (due to cars being replaced by bodies) a harbinger of something good.

Of course, I went off to find the women in this story, to post them at my other shop.

The names most often associated with these world-changing events were, of course, those of prominent Egyptian men, such as President Hosni Mubarak, nuclear scientist and popular opposition figure Mohammed el-Baradei, Army strongman and vice president Omar Suleiman and Mohamed Beltagui of the Muslim Brotherhood. On today’s chat shows, you’ll likely see those names tossed around as Middle East experts try to predict the future.

But what we’ll most remember is the women’s leadership that has evolved right alongside these protests —including human rights activist Nawal al-Saadawi, who speaks above about her return to Egypt years after being imprisoned and exiled by successive Egyptian regimes. Hundreds of images like these adorn the Women Of Egypt Facebook page. “The country’s sisterhood,” notes the Los Angeles Times, “has sparked a movement within a movement.”

Much more here,, including tons of video and Mona Eltahawy laughing in Bill Maher’s face.

Judy Shepard: the true “mama grizzly”

When you hear the phrase “mama grizzly” thrown around as a Republican buzzword, it’s useful to think of heroic women who live up to that phrase. I had the privilege of meeting one last week, at the University of Pennsylvania.

“I was just a mom, who cared about her boys,” said the lovely 5’4″ woman to the 50 people crowding in to hear her, in a campus bookstore at the University of Pennsylvania.  “I was not a public person.”

Yet today, Judy Shepard’s life is entirely public, so much so that she said good-naturedly of her life: “I spend a lot of time on airplanes.” And on, June 27  she was one of three grand marshals in one of New York City’s largest parades: the 41st annual NYC Pride march, urging full equality for lesbian, gay, bisexual and transgender Americans.

Not that Shepard herself is among them. But ever since her son, Matthew Shepard,  died nearly 12 years ago at the hands of two men who’d been looking for  a gay man to assault, Shepard and her family have worked every day to end such hate crimes.
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