June 21st, 2011

U.S. Supreme Court (again) crushes American workers; Wal-Mart smirks

Betty Dukes at SCOTUS

The June 20, 2011 Supreme Court decision in the Wal-Mart v. Dukes case (1) insulted any worker who dares complain about discriminatory mistreatment at work, (2) made it harder for individuals to join together for lawsuit efficiency in a class action to go up against a behemoth multinational employing corporation, (3) ignored and rewrote a 45-year legal precedent, and (4) cemented Justice Scalia and the conservative block’s motivation to serve corporate interests over those of ordinary working Americans.

Betty Dukes, in 2000, claimed that she had been denied promotion to higher-paying jobs. The incident that provoked the lawsuit was when she needed change to make a small purchase during her break. She asked a friend to open a cash register with a one-cent transaction, a common practice, according to Dukes. For that act she was demoted and had a humiliating cut in pay, accused by Wal-Mart management of misconduct. She still works as a greeter at the Pittsburg, California store. She is also an ordained Baptist minister of a local church. Ms. Magazine named her one of its Women of the Year in 2004. As of May 2010, at age 60, she still lived with her mother because her Wal-Mart hourly wage of $15.23 did not allow her to own a home of her own.

Dukes’ attorney was Brad Seligman, of the Impact Fund in Berkeley, California. The lawsuit with Dukes as one of six lead plaintiffs was filed in U.S. District Court in San Francisco in 2001. Despite the strain that such a lawsuit has caused its namesake, Dukes said, “In this life you have to stand up or be trampled.”

Corporate Ally

Scalia, writing for the 5-4 majority to strike down the class action suit against giant retailer Wal-Mart, said that because Wal-Mart has an official corporate policy that gender discrimination is prohibited (p. 13 in the decision) and because penalties are presumably imposed for violating the policy, discrimination does not occur at Wal-Mart that can be characterized as pattern and practice.

The majority of justices considered credible Wal-Mart’s claim that they did not discriminate because they said so and had a policy on the books. We agree that a policy, a line drawn in the sand, is the requisite starting point for any workplace culture that intends to treat workers fairly. But to argue that the policy’s presence on the books alone is sufficient is naive. Scalia is not stupid. He and the other corporatists on the Supreme Court simply want to ignore complaining employees as whiners not deserving respect.

This Scalia point is the least legalistic of the several arguments to find in favor or Wal-Mart. It is the HR argument. Recently, a Ventura County (CA) grand jury found evidence of bullying and harassment of employees by management. The HR director, John Nicoll, challenged the evidence by stating that the county has a policy and that he would be shocked if bullying really did happen.

Nicoll, and SCOTUS justices Scalia, Roberts, Kennedy, Thomas and Alito all want us to believe that employers do not lie, never deprive workers of their rights, always follow state and federal laws, and always know best. To challenge the corporate line is wrong. The majority of the current Supreme Court is an “HR dream team.”

Wal-Mart is especially happy with the decision that it failed to win in the federal trial court or the Court of Appeals. Luckily the firm saved their pennies so they could take their case to the one place where they had powerful legal allies willing to protect them and other poor defenseless and largest employers in the U.S.

Gisel Ruiz, Vice President of People (not the magazine, rather the slaves that work for her), Walmart U.S. officially gloated that the SCOTUS decision “pulls the rug out from under the accusations made against Walmart over the last 10 years. Every female associate and every customer can feel even better about the company as a result of today’s decision.” Ruiz feels better, why don’t you?

For their investment, Wal-Mart, on behalf of all corporations, will also benefit from Scalia and the Court conservatives decision to rewrite law. Class action lawsuits are governed by Rule 23 of the Federal Rules of Civil Procedure. The Rule, prior to June 20, established a low threshold for groups of employees suffering at the hands of a single employer to file a common lawsuit. Many were discriminated against at Wal-Mart, a single employer. Hence the class action.

Scalia and the cons changed the Rule 23 standard to now require groups of plaintiffs to show that they were harmed by the same boss or the same biased employee test, not simply employed by the same corporation with an overarching pattern and practice of misconduct. Wal-Mart’s defense in the Dukes case was that the corporation gives latitude to individual store managers to make local decisions. That dispersion of responsibility was enough to kill the claim of commonality across all Wal-Mart stores for Scalia.

One far-reaching (too “far reaching” according to dissenting Justices Ginsburg, Breyer, Sotomayor, and Kagan) implication of Scalia’s judicial lawmaking — the revision of what defines commonality — will be to force each individual worker to file an expensive lawsuit against the giant employer. Employers will find it even easier now to squash cases with motions for summary judgment or prolonged procedures that bankrupt individuals. The original Rule 23 sought to minimize taxpayer-paid public court expenses. Now smaller and more frequent cases without access to class action status will cost government more without putting a dent in the coffers of giant corporations.

Scalia managed to deal a blow to government at a time of great fiscal pressure and to shove workers’ demands for dignity aside.

Another implication is that the merits of the case must be shown to a judge by plaintiffs before having the case certified as eligible for class action status. In Wal-Mart v. Dukes, the legal proceedings all centered on the applicability of class action status. The case itself was never tried.

Employers have little to fear from employment lawsuits anyway. The Ashley Alford case is the exception, not a regular outcome. Thanks to Scalia and his cohorts in the majority, employers will have it easier.


The two major flaws of existing anti-discrimination laws are: (1) that they fail to cover incidents outside the narrow legal boundaries (victim must be a member of a protected status group while the harasser cannot be, thus 80% of bullied workers cannot rely on existing laws for help), and (2) it is a sick and twisted irony that harassers who torment people across boundaries of age, race, and gender — the equal opportunity abusers — have a legal defense for their misconduct. The final injustice related to the Wal-Mart v. Dukes case is that merits were never debated. The entire 10 year battle was not over whether or not women at Wal-Mart suffered discrimination. It was a technical fight over the legitimacy of filing a class action on behalf of 1.5 million current and former women employees.


Read the complete SCOTUS decision in the Wal-Mart v. Dukes case decided June 20, 2011.


<-- Read the complete WBI Blog

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This entry was posted on Tuesday, June 21st, 2011 at 4:22 pm and is filed under Employers Gone Wild: Doing Bad Things, Events & Appearances, Fairness & Social Justice Denied, Rulings by Courts. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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