Image: National Women's Law Center.

Betty Dukes and Christine Kwapnoski, two of the named plaintiffs in Wal-Mart v. Dukes, the flagship lawsuit dismissed Monday by the U.S. Supreme Court, say they are not deterred. Dukes, the lead plaintiff, is telling the press that “even though we didn’t get the ruling that we had hoped for, we still are determined to move forward and to present our case in court.” Kwapnoski, a Sam’s Club assistant manager in California, added, “When I go back to work tomorrow, I’m going to let them know we are still fighting.”

 

Wal-Mart was pleased with the decision: Gisel Ruiz, executive vice president for personnel, hailed the suit’s dismissal. “Wal-Mart has had strong policies against discrimination for many years. The court today unanimously rejected class certification and, as the majority made clear, the plaintiffs’ claims were worlds away from showing a companywide discriminatory pay and promotion policy.” Ruiz added that “Walmart has a long history of providing advancement opportunities for our female associates and will continue its efforts to build a robust pipeline of future female leaders.” All agreed that even though the court didn’t rule on the plaintiffs’ substantial evidence of discrimination, the majority’s statement that they had too little in common to constitute a class was a serious blow to many such suits based on a history of discriminatory “pattern and practices” by large corporations.

Janet Ryder (AFL CIO) and Alison Roseberry-Polier (Jobs with Justice). Photo: Bill Epstein, UFCW

“I feel like we just rolled the clock back decades,” said Philadelphia labor official Janet Ryder, who met with WVFC today at Philadelphia City Hall, where a local coalition protested the ruling. “These discrimination cases are expensive. How are women, how are people of color going to do it on their own? This court just made it incredibly hard for us to join together and do it.” Ryder,  of the Philadelphia Central Labor Council (AFL-CIO), and other union officials told WVFC that they’re still collecting testimony from Wal-Mart workers and sorting out what to do next. “ Wal-Mart is not too big for justice,” added Wendell Young of the United Food and Commercial Workers. “We will continue to hold Wal-Mart to fair workplace standards for its 1.4 million associates and its women employees who deserve the right to press their claim that they have lost wages and been denied promotions based on Wal-Mart’s history of unfair practices.”

Still, the court’s decision doesn’t make their task easy. At the Supreme Court, where such advocates as the Feminist Majority Foundation gathered Monday “to show that we were standing with the women of Wal-Mart,” Marcia Greenburger of the National Women’s Law Center summed up what the crowd was feeling.

Today, in a 5-4 ruling, the Supreme Court issued a devastating decision undoing the rights of millions of women across the country to come together and hold their employers accountable for their discriminatory practices. The court has told employers that they can rest easy, knowing that the bigger and more powerful they are, the less likely their employees will be able to join together to secure their rights. The women at Wal-Mart — together with women everywhere — will now face a far steeper road to challenge and correct pay and other forms of discrimination in the workplace.

The decision itself was both unanimous and a 5-4 split decision. Even the more liberal justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor and Stephen Breyer agreed with the majority opinion, written by Justice Antonin Scalia, that the million-plus potential class action did not fit into the particular class-action rules under which the action had been brought. But the latter justices issued a lengthy dissent to Scalia’s assertion that the class was near-inconceivable and that the discrimination they were alleging was unlikely because it made no business sense. Slate’s Dahlia Lithwick shared our outrage at his statement that “left to their own devices most managers in any corporation — and surely most managers in a corporation that forbids sex discrimination — would select sex-neutral, performance-based criteria for hiring and promotion.” Many women would beg to differ; one WVFC reader chiming in on our Facebook page said that she was a former Wal-Mart employee and that “those 11 years were the worst of my life.”

At times, Ginsburg’s dissent reads like interpretation for the empathetically challenged. She referred more directly to the actual data presented by plaintiffs, including  Kwapnoski’s testimony of abusive managers “telling her to doll up by wearing more makeup and dressing better while working on a loading dock,” to explain how discretion for managers might manifest as sexist treatment of employees. Citing a Supreme Court precedent regarding “disparate impact” on women and minorities, she adds: “Wal-Mart’s delegation of discretion over pay and promotions is a policy uniform throughout all stores. The very nature of discretion is that people will exercise it in various ways. A system of delegated discretion, Watson held, is a practice actionable under Title VII when it produces discriminatory outcomes.”

The group led by Ginsburg asserts that the majority should have sent the case back to lower courts for a possible alternative way to proceed, instead of dismissing it entirely. But then it wouldn’t have been hailed as a milestone by The Wall Street Journal. After the ruling was handed down, Wal-Mart stock rose significantly. This court thus proved true to recent form, having already ruled against class actions in the two other cases of this term’s “class action trifecta” WVFC was watching, like AT&T v. Concepcion. While court-watchers were mostly unsurprised by the result, many have suggested a number of public-policy solutions, from even more women on the court to a renewed push for the Paycheck Fairness Act. We’re guessing that all of the above, and much more, will be necessary before it’s all over.