Wal-Mart Supreme Court Case Cited in 1,200 Decisions in 2 Years

Monday, September 30, 2013
Betty Dukes of Wal-Mart v. Dukes

Just as critics predicted, the Supreme Court’s June 2011 decision in Wal-Mart v. Dukes has crippled legal efforts to redress employment discrimination, bringing about the dismissal of numerous cases—including some in which employers had already agreed to pay settlements—alleging sex, race and other forms of bigotry in the workplace. Employer groups, however, are quite happy with the new civil rights regime.


In the case, which was narrowly decided 5 to 4, plaintiffs argued that despite a written policy against discrimination, Wal-Mart allowed local managers to make most employment decisions, leading to corporate-wide bias. In fact, Wal-Mart’s own wage and promotion data suggested pronounced, persistent wage differences between male and females at every level, from hourly workers to senior managers. A strong case under the law as it existed when it was filed in 2001, it was slapped down in an opinion by Justice Antonin Scalia.


Scalia rejected the contention that such a large corporation should be held responsible for the decisions of local managers supposedly exercising their own discretion, and also overturned a 35-year-old statistical formula for calculating money damages in employment discrimination class actions, instead ruling that plaintiffs now must have individual trials.


By several measures the decisions, which has been cited in more than 1,200 federal and state cases, has reshaped the legal landscape to favor employers over employees. Judges have overturned jury verdicts, tossed out settlements, and rejected or decertified class actions to the benefit of corporations like Family Dollar, Lockheed Martin, Cintas, and Hearst. The size of worker discrimination settlements has fallen as well: In 2010 the top 10 settlements came to $346 million, but in 2012 that total plummeted 87%, to $45 million.


There has also been a drop-off in new employment discrimination class-action suits, say attorneys who represent women and minorities. According to Jocelyn Larkin of The Impact Fund, a public service law firm in Berkeley, California, that helped bring the Dukes suit, 25 or 30 such cases used to be filed every year, but now the number of new cases has dropped to 10 or 12.


That decline in lawsuits sits uncomfortably with an apparent increase in discrimination. According to Noreen Farrell of San Francisco’s Equal Rights Advocates, which was also involved in the Dukes case, the organization has seen a tripling of calls to its nationwide hotline, many from low-wage women facing discrimination on the job and elsewhere. Even before Dukes, “they already had many obstacles,” said Farrell. To fight these battles individually, “is often impossible.”


Edith Arana, one of the original plaintiffs in the Dukes case, agrees that fighting a large corporation like Wal-Mart without the resources of a class action is beyond individual workers like her. “It can’t just be you out there,” Arana said. “No one person, no one attorney, no one support system is enough.”

-Matt Bewig


To Learn More:

The Impact and Echoes of the Wal-Mart Discrimination Case (by Nina Martin, ProPublica)

Wal-Mart v. Dukes (Scotus Blog)

Supreme Court Prepares to Hear Wal-Mart Sex Discrimination Case (by Noel Brinkerhoff and David Wallechinsky, AllGov) 


petula 5 years ago
I agree on the "it can't just be you out there" but i disagree on "no one person" is enough, if it hadn't been for one person alot of history would not have happened, I'm the latest threat, the citizen!! I'm Native and one of the Cobell clients, I'm very upset this has been allowed to go on for so long and the only reason it had been allowed to drag on is contempt and the governments not wanting to pay up especially to me I'm fighting this fight alone with no legal aid because no one wants to stick their necks out there again cause they think I'm going to lose!! if i do lose at least i lost fighting for our land and justice!!

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