WASHINGTON – The Supreme Court prevented the biggest sexual discrimination lawsuit in history from proceeding as a class action today, giving a victory to Wal-Mart in a case that pitted the retail giant against millions of its female employees.
The women, who led the suit against the world’s largest retailer, during a telephone press conference less than an hour after the court ruling was announced, vowed to continue their fight.
“We are stronger from this ruling. We will find other avenues. If it takes one woman at a time, we will go forward,” said Betty Dukes, the lead plaintiff in the suit. Dukes, is a 61-year-old African American greeter at the Pittsburg, Calif., Wal-Mart store.
The justices all agreed that the lawsuit against Wal-Mart Stores Inc. cannot go ahead as a class action in current form, reversing a decision by the 9th U.S. Circuit Court of Appeals in San Francisco.
But they split 5-4 along ideological lines over whether the plaintiffs should in essence get another chance to make their case.
The lawsuit, had it been allowed to proceed as a class action, could have involved up to 1.6 million women, with Wal-Mart facing billions of dollars in damages.
“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,” said Marcia Greenberger, co-president of the National Women’s Law Center. “The women of 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 lawsuit said that women are grossly underrepresented among managers, holding just 14 percent of store manger positions compared with more than 80 percent of lower-ranking supervisory jobs that are paid by the hour. Wal-Mart had responded to the lawsuit claiming that women in its retail stores make up two thirds of all employees and two thirds of “managers.”
The company, in its response to the courts, also said it has written policies prohibiting discrimination and that since the suit against it was filed, has taken “additional steps to address problems,” including posting job openings electronically.
The ruling blocking the case from proceeding as a class action still allows the group of women who brought the case to pursue claims on their own.
Lawyers for the women said they will continue claims with the Equal Employment Opportunities Commission and may file new class-action suits against Wal-Mart store-by-store or region-by-region.
“Be careful what you wish for, you might get it,” said attorney Brad Seligman at the press conference, about Wal-Mart’s claim that the class was too big for a single lawsuit.
Justice Antonin Scalia’s opinion for the court’s conservative majority said there needs to be common elements tying together “literally millions of employment decisions at once.” He said such elements were “entirely absent here.”
Justice Ruth Bader Ginsburg, writing for the court’s four liberal justices, said there was a great deal that united the claims. “Wal-Mart’s delegation of discretion over pay and promotions is a policy uniform throughout all stores,” Ginsburg said.
In a statement, the National Organization of Women said the Supreme Court ruling said, “Essentially, Wal-Mart is too big to sue. The brave women who stood up to Wal-Mart at great personal sacrifice, are told simply they’re on their own.”
“With this decision,” said NOW President Terry O’Neill, “the Supreme Court has assisted Wal-Mart in its efforts to systematically dole out promotions and pay raises on the basis of sex.”
Women’s’ groups and unions say that on a legislative level it is more urgent than ever that Congress pass the Paycheck Fairness Act, which would make sex-based wage discrimination easier to combat. The bill passed in the House in January 2009, but was ultimately blocked in the Senate.
Unions say that it is also critical for Wal-Mart to end its resistance to union organizing. They note that unionized women workers earn better wages and benefits than their non-union counterparts with women in unions earning $2.00 more per hour than non-union women.
Dukes said Wal-Mart won because of power and money. “Corporate America has won against us because they literally had all the funds and the high-paid representation to steer this case forward to the Supreme Court, which was more favorable to them,” she said. Lower courts ruled in favor of the women.
The United Food and Commercial Workers union said it would support the women as they continue their fight. Union President Joe Hansen said the union would do this despite the fact that “the High Court has taken a potent weapon – large class actions – away from workers.”
Hansen continued, “We will continue to demand accountability from Wal-Mart. This decision will not stop workers from joining together, through collective action, or prevent them from continuing to pursue their individual claims against Wal-Mart.”
Photo: From left, Betty Dukes, Deborah Gunter, Christine Kwapnoski and Edith Arena, plaintiffs in the case of women against Walmart, at a March 29 press conference outside the Supreme Court. (Jacquelyn Martin/AP)