Class Action

The National Partnership for Women & Families joined with women's business groups to file the brief, which calls on the U.S. Supreme Court to consider the benefits of fair, inclusive policies for businesses, and the importance of class action lawsuits in reforming discriminatory practices, as it considers whether the case of Dukes v. Wal-Mart can continue as a class action.

Dukes v. Wal-Mart has been making headlines since it began. In 2000, Betty Dukes, a female greeter at a Wal-Mart store in California suffered an unfair pay cut and demotion. Soon after, she learned that female Wal-Mart employees across the country had experienced similar injustices. In 2001, Dukes and 1.6 million women like her, who had or currently were working for Wal-Mart, sought to hold the company responsible for the company's discriminatory pay and promotion practices.

Despite evidence that the practices in question were widespread and systemic, Wal-Mart has tried to avoid liability in the case by claiming that it is too big to handle. The argument has failed in the lower courts, but the company has appealed the issue to the Supreme Court. It will hear argument on whether or not the women should be able to proceed as one class on March 29th.

The future of the case currently rests on the claim by Wal-Mart - the nation's largest private sector employer - that its employees cannot collectively charge it with wrongdoing because the group is too large. Can a company really be too big to be held accountable when it breaks the law? According to the brief filed on behalf of the U.S. Women's Chamber of Commerce, California Women Lawyers and the National Partnership, the answer is no-and, notably, fair policies and the reforms achieved through class actions are not necessarily bad for business.

As the brief details, compelling research demonstrates the benefits of fair pay and promotion policies for businesses. By paying their workers fairly, employers boost employee retention and productivity while enhancing their own image.

Contrary to common objections by employers, fairness in the workplace can actually boost business bottom lines. And of course, discrimination is against the law. Therefore, by following the law and treating their workers fairly, businesses protect themselves against costly litigation and liability.

As The Times' Adam Liptak notes, the justices will not determine whether Wal-Mart has discriminated against scores of its women workers, but whether the employees "may be combined as a class action. The court's decision on that issue will almost certainly affect all sorts of class-action suits, including ones asserting antitrust, securities and, products liability and other claims."

Earlier this year, the U.S. Court of Appeals for the Ninth Circuit ruled to allow the case to proceed as a class action. The class of women employees in Dukes v. Wal-Mart argued in its lawsuit that there "are two workforces at Wal-Mart. By far the largest workforce is female, which comprises 72 percent of the hourly sales employees, yet only one-third of management positions. This workforce is predominantly assigned to the lowest paying positions with the least chance of advancement. The other workforce is male. This workforce is the reverse image of the female workforce - it comprises less than 28 percent of the hourly sales workers, yet holds two-thirds of all store management positions and over 90 percent of the top Store Manager positions. This disparate distribution of the genders is the result of purposeful discrimination and of practices that serve no reasonable business purpose yet have a disproportionate impact on women."

Wal-Mart, as noted in this guest post for ACSblog urged the Supreme Court to take the Ninth Circuit case and overturn the majority opinion, arguing, in part, that the retailing outfit is way too big for a class action to be brought against it. As Liptak notes in his piece, the lawsuit seeks back pay and if it were successful could cost the company billions.

In their petition urging the court to leave the Ninth Circuit opinion untouched, the plaintiffs said the size of the class is "legally irrelevant." The brief continued, "The class is large because Wal-Mart is the nation's largest employer and manages its operations and employment practices in a highly uniform and centralized manner."

SCOTUSblog's Lyle Denniston has more coverage of the Supreme Court decision to hear the Wal-Mart class-action case, as well its decision to hear "an appeal by four large electric generating companies that have been sued by a group of governments." In American Electric Power Co., v. Connecticut, Denniston writes, that the "case is one of several around the country in which states, and others, are seeking to hold someone to blame for climate change, including global warming due to emission of greenhouse gases, in the face of the federal government's previous reluctance to regulate such pollution."