The Supreme Court heard a hearing on Tuesday on what could become the biggest sex discrimination case in the history of the US against discount giant Wal-Mart. Over ten years ago, Betty Dukes and five plaintiffs filed a sex discrimination case against Wal-Mart alleging that Wal-Mart discriminates against women by paying women less than men for the same position and by overlooking qualified women for promotion. If the Supreme Court certifies a class action against Wal-Mart, the case could end up in the billions, if the Plaintiffs prevail. It is estimated that anywhere from 500,000 to over a million women may be involved in the lawsuit. The class action, if approved would include all past and present Wal-Mart women workers since 1998. Class actions allow plaintiffs who share a similar complaint to proceed as a class without having individual trials. It is not a perfect solution.
Certain legal requirements must be met to go forward as a class action. One or a few individuals may file a case, representing everyone who shares the same legal claim, if the whole group is so large that the courts could not handle such a crowd; if the case raises the same questions of law and fact for all members meaning those representing the group raise claims typical of everyone’s; and the class representative must “fairly and adequately” protect everyone’s interests. In the Wal-Mart case, the individual named plaintiffs are asserting that all women past and present employees have the same legal claim with similar questions of law and fact on sexual discrimination.
The original and first lawsuit was filed by Betty Dukes, an African American woman working as a store greeeter. She was quickly joined by 5 other women alleging the same thing, being passed over for promotions and unequal pay. Over 7 years ago, a previous judge certified a class action of all women employed by Wal-Mart. Wal-Mart’s lawyers have been trying to undo the class action status ever since. Through various legal maneuvers, the case on the class action has finally reached the Supreme Court.
Wal-Mart flatly denies any discrimination occurred. And Wal-Mart further says the incidents alleged are isolated incidents and a result of bad employees and not a pattern and practice. Justice Ruth Bader Ginsburg, an expert on sex discrimination cases, did not appear persuaded on Tuesday by Wal-Mart’s argument. The Supreme Court is almost evenly split among conservatives and more liberal leaning justices. Since the class action tool was allowed by the court over 40 years ago, there has never been a case even close to the numbers involved in the Wal-Mart case.
It will be some time before the Supreme Court rules on whether to allow a class action. The case was filed in the court system over 10 years ago. And it hasn’t gotten close to a trial yet. The wheels of justice turn very slowly.
Debbie Hines is a lawyer and political and legal commentator. She is frequently seen in the media addressing issues on women and race in law and politics. She also writes for the Huffington Post. She holds a Juris Doctorate from George Washington University Law School and a BA from the University of Pennsylvania.