It’s Walmart’s world, and the rest of us are just living in it. That seems to be the take away from the Supreme Court’s ruling in Duke v. Walmart. The court ruled on a narrow aspect of the case, but the decision has broad and foreboding implications for workers, women, minorities, and the course of progressive change going forward.
In March, when I first wrote about this case I began with a warning: "If you think conservatism’s war on America’s working- and middle-classes is only happening in Wisconsin and a few other states, you’re wrong. If you think that it’s only a war against public employees, you’re more wrong than you know." I wrote that the court could possibly strip from private sector employees their last effective tool for seeking justice in the workplace.
Having read the news of the court’s decision in Walmart’s favor, I fear I was more right than I expected.
The suit claimed that Wal-Mart’s policies and practices had led to countless discriminatory decisions over pay and promotions.
The court divided 5 to 4 along ideological lines on the basic question in the case — whether the suit satisfied a requirement of the class-action rules that “there are questions of law or fact common to the class” of female employees. The court’s five more conservative justices said no, shutting down the suit and limiting the ability of other plaintiffs to band together in large class actions.
The court was unanimous, however, in saying that the plaintiffs’ lawyers had improperly sued under a part of the class-action rules that was not primarily concerned with monetary claims.
Business groups welcomed the decision, and labor and consumer groups strongly criticized it. But all agreed it was momentous.
Naturally, opinions and interpretations concerning the court’s ruling about, and most of them from more legally-trained minds than mine. I’ll leave it to them to hash out the legal intricacies and implications of the courts ruling. But, beyond the Supreme Court’s ivory tower and the pontifications of the pundit class — in the places where Americans live and work — for those us who lack the might of great numbers or money this decision has the effect of putting the brakes on progressive change.
Too Small To Matter
For Betty Dukes, the court’s ruling means that the San Francisco attorney who told her that she was not alone in experiencing discrimination while working at Walmart was both right and wrong. He was right in the sense that, as Dukes discovered, the were more than a million women who would stand with her in a shared pursuit of justice. Ms. Dukes, indeed, was not alone. He was wrong, too. For now Ms. Dukes does stand alone against the corporate behemoth that is Walmart. The Supreme court has decided she should.
Dukes described her dispute with Walmart as a "David and Goliath" conflict. Now the Supreme Court has sent Dukes and 1.5 million other Davids to do battle with Goliath, but without a slingshot.
To put it another way, as Dahlia Lithwick wrote at Slate, the Supreme Court has told Dukes, her fellow plaintiffs, and really millions of other workers with grievances to "Go home." Or, as law professor Matthew Bodie put it in the New York Times’ "Room for Debate.", the Supreme Court has basically said, "Go back to work," and "Work it out with the bossman."
The Roberts Court has shown a real propensity for the private resolution of employment disputes, even when public policies are at issue. In the health care and pension benefit cases, the court has been very deferential to plan administrators; Chief Justice Roberts began one opinion by saying, “People make mistakes. Even administrators of ERISA plans.”
The court has also given great leeway to arbitrators to handle sensitive employment matters and be free of legal challenges. Thanks to the court, arbitrators now decide whether the arbitration agreement itself is unfair or not.
…The Dukes case continues that approach. The majority opinion essentially says that courts are not the vehicle for resolving this kind of massive discrimination claim on a class-wide basis. There was sociological evidence that Wal-Mart’s discretionary management philosophy opened the door to individual supervisor biases, particularly against women. But the court did not find this evidence sufficient to sustain a class-action approach.
Although the majority and dissenters come to a head over the definition of “commonality,” I think the real issue here is the definition of “dispute.” The Dukes majority sees 1.5 million members of the class, and 1.5 million disputes about potential discrimination. The majority doesn’t want courts handling these claims; it wants them to be handled on the ground, in the workplace.
By raising the bar for plaintiffs — whom the majority basically said have to prove the merits of their case essentially to put the case before a judge before its even been tried, and all but prove they can win in court. The court has decided that these women must go back and settle these disputes in the context of the very culture that created the problem in the first place. That is, "take it up with the Bossman." The problem with that is, "Take it up with the bossman," is no solution where the boss is the problem in the first place. Dukes tried that, after all, and got nowhere. That, according to this court, seems to be where all such journey’s will end in the future.
If one party claims she was discriminated against, the dispute must then be handled in an arena wholly owned and operated by one of the parties in question — the one against whom. If the problem is with the culture in the workplace and the dispute must be handled in that same workplace, then it seems far less likely that individuals will find justice standing alone against a corporate entity in its own arena.
It must be remembered, Betty Dukes tried that approach. She "took is up with the Bossman" as an individual, with Walmart management.
Beyond making some corporations "Too Big To Sue," a ruling for Walmart could make workers like Betty Dukes "Too Small To Matter."
Walmart, like many private sector employers, is nonunion, and the company is famously anti-union. The nation’s largest private employer (PDF) has resorted to "legal but heavy-handed" tactics in response to efforts to organize employees, including "a rapid-response team to prevent organization, a hot line for store managers and tips on staying ‘union free’," and even closing stores to prevent employee organizing. The National Labor Relations Board charged Walmart with illegal activity, by "by coercing, intimidating and retaliating against its employees who were seeking a voice on the job" through an employee union.
As a result like most non-unionized private sector workers, and now also public sector workers in Wisconsin Walmart employees can’t bargain collectively for better working conditions or living wages. Instead, they have to deal with the company on an individual basis., as Dukes did when she sat down with Walmart, her "negotiations" with the Walmart.
The quest began six years after Mrs Dukes took a $5-an-hour job on the Walmart tills in 1994. She said that she had planned to work hard and advance through the company until she reached management. By 1999 that prospect had been destroyed. A dispute with managers over her chances of advancement ended in a humiliating demotion and pay cut, she said. A lawyer told her that she was not alone in claiming that she had encountered discrimination, and in 2001 the lawsuit was filed in San Francisco. The part-time preacher still works at Walmart, and lives with her mother because, she says, she cannot afford a home of her own on her $15.23 (£9.98) an hour salary. There are times that I cant afford my lunch, she said, wrapping her chicken nuggets in a napkin for later. But I’m still blessed.
The global retailer denies accusations of inequality and argues that if there are any instances of discrimination they are isolated, and not a company-wide problem. Walmart says any such cases should be handled as individual lawsuits, not as a class action.
The lawyer who told Dukes that she wasn’t alone was both right and wrong.
In another sense, Dukes was not alone. As she herself put it, casting her dispute with Walmart as a "David v. Goliath" conflict, Duke said "David had five stones, but only needed one." And the one stone wasn’t merely her ability to sue Walmart, but to join her voice with others in a case that for Walmart would be "Too Big To Ignore." Without that, Dukes’ case wouldn’t have gotten much further than her meeting with Walmart management.
If filing suit against Walmart took Dukes and her fellow plaintiffs from "Too Small to Matter" to "Too Big To Ignore," then the majority’s ruling for Walmart reduced them back to "Too Small To Matter."