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PORTSIDE  March 2011, Week 5

PORTSIDE March 2011, Week 5

Subject:

Justice for Betty Dukes and the Women of Wal-Mart?

From:

Portside Moderator <[log in to unmask]>

Reply-To:

[log in to unmask]

Date:

Thu, 31 Mar 2011 00:01:14 -0400

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (120 lines)

Justice for Betty Dukes and the Women of Wal-Mart?

by Liza Featherstone Published on Wednesday, March 30,
2011 by The Nation
http://www.commondreams.org/view/2011/03/30-10

“We, the women of Wal-Mart, will have our day in court,”
Betty Dukes told me almost seven years ago, declaiming
from a park bench near her lawyer’s office in Berkeley,
California. “[Wal-Mart] will answer our charges—that they
have treated us unfairly and we deserved better."

Dukes, who still works at Wal-Mart, is the lead plaintiff
in Betty Dukes vs. Wal-Mart Stores, the largest civil
rights class action suit in history, which accuses the
retail giant of sex discrimination in pay, promotions and
hiring. The potential class has at times included more
than a million women (recently, though, estimates have run
closer to the hundreds of thousands). Dukes and her
colleagues have yet to have their day in court, all these
years later, and if an army of right-wing opponents has
its way, they never will.

The Supreme Court heard arguments yesterday on the
certification of Dukes vs. Wal-Mart. That means the
justices must now decide, not whether Betty Dukes and her
co-workers experienced discrimination--that crucial
question may be left forever undecided by our legal
system--but whether their case should move forward as a
class action suit.

At issue is whether it is possible to make any legal
claims at all about institutional discrimination at a
large company, as Wal-Mart argues that the class is too
large and that plaintiffs’ description of its practices
not credible: how could so many women encounter sexism
from so many managers? Yet female employees at Wal-Mart
have been paid less than men in nearly every job category,
and promoted less often, despite lower turnover rates and
better job performance ratings.

Though legal arguments were made yesterday, a look at the
authors of the amicus briefs on both sides shows that the
certification of Dukes is really an economic and
ideological battle. On Betty’s side, liberal groups like
Consumers Union, the United Food and Commercial Workers
and Public Citizen--anyone who believes that citizens
should be able to use the legal system to wrest systemic
change from large corporations--have weighed in.

On behalf of Wal-Mart, much fatter cats have rallied,
including the US Chamber of Commerce, the Securities
Industry and Financial Markets Association, Intel, Altria,
Bank of America, Del Monte Foods, Fedex, Microsoft, Costco
and many more. In addition to these corporate interests,
conservative champions of an even more libertarian
order--the Washington Legal Foundation, Atlantic Legal
Foundation, New England Legal Foundation--are also lending
Wal-Mart their support. Dukes vs. Wal-Mart’s opponents are
united in their desire to suppress the ability of workers
and consumers to sue large companies.

The Supreme Court itself may have an ideological agenda
here too. As Jeffrey Toobin and other observers have
pointed out, it’s unlikely that the Court would have
agreed to hear Dukes unless the justices wanted to strike
it down. After all, class action suits have been such
beloved bugbears of the right, and some of the justices
are fierce warriors for conservative causes.

No decision is expected on Dukes for at least a month, and
possibly not until the end of June. If the certification
is struck down, it will be a triumph for the right, making
class action lawsuits even more difficult to litigate and
win.

To be sure, the plaintiffs have already enjoyed some
victories. The case has exposed Wal-Mart’s employment
practices to the public, and everyday sexism in its stores
no longer goes completely unchallenged. Betty Dukes says
the lawsuit has changed Wal-Mart. It is now easier for
women to learn about open positions and to enter the ranks
of management. “I have personally been thanked by women
who have been promoted,” Dukes said today, speaking
hoarsely, as she has been talking about her case nonstop
these last few days.

But even if the Court upholds certification of Dukes and
the women do get their day in court, we have to ask why we
have become so dependent on such an inefficient means of
justice. Betty Dukes brought her case ten years ago, and
courts have still not even begun to debate its merits.
With stronger unions, more aggressive government
enforcement, and better-organized social movements, class
action suits like Dukes probably wouldn’t even be needed.

Yet the Supreme Court challenge--and ferocious lineup of
briefs--is a testament to the tenacity of the corporate
elite and of the right. The class action may be a feeble
instrument of justice, but it’s one of the few we have
left, and that’s why they’re so eager to take it away.

___________________________________________

Portside aims to provide material of interest to people
on the left that will help them to interpret the world
and to change it.

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