By Sarah Crawford, Director of Workplace Fairness, National Partnership for Women & Families
Tomorrow, the Supreme Court will hear oral argument in Wal-Mart v. Dukes - the high profile class action case involving 1.6 million women who have worked at Wal-Mart. The Court is poised to decide whether or not the women can proceed as a class to challenge the systemic discriminatory pay and promotion practices of the country's largest employer. More than a decade after the women first filed their lawsuit, the Court's decision will determine if the women will finally get the chance to present the merits of their claims in court.
During ten years of litigation, the class has amassed an impressive body of evidence. Statistical evidence shows that women were receiving significantly less pay and fewer promotions than their male counterparts - despite better performance reviews, greater seniority and fewer disciplinary issues. Anecdotal evidence demonstrates a corporate culture of gender stereotypes and a lack of objective standards for making personnel decisions.
Before the class can get to the merits of their claims of discrimination, however, they must first convince the Supreme Court that the lower courts properly certified the class under Rule 23 of the Federal Rules of Civil Procedure. The Court has taken up the question of whether the class of women satisfy Rule 23(a)'s requirements of numerosity, commonality, typicality and adequacy, as well as Rule 23(b)(2)'s requirement that "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole."