July 1, 2011_nWLP 6/28/11 10:10 AM Page 9
After Supreme Court tosses class action
Women vow to continue sex discrimination fight against Walmart
WASHINGTON, D.C. (PAI) —
Brookfield, Colorado Letter Carrier
Cindy Kirby has a simple message for
the U.S. Supreme Court: “My 21-year-
old daughter, who just graduated col-
lege and is job-hunting, deserves fair
and equal pay, too, when she lands a
job.”
But thanks to the High Court’s June
20 ruling tossing out a massive class-
action lawsuit filed by female workers
at Walmart, Kirby’s daughter and mil-
lions of other woman workers might
not get it.
The justices, in a 9-0 decision writ-
ten by Associate Justice Antonin
Scalia, threw out the entire suit, includ-
ing certification of the women as a
class. Ten years ago, a group of women
who worked at Walmart stores, led by
Betty Dukes, filed a lawsuit alleging
the corporation engaged in company-
wide gender discrimination by paying
women less than men, promoting fewer
women to management positions and
promoting male employees more
quickly.
A four-justice minority — dissent-
ing in part from the majority ruling —
said the only thing wrong with the law-
suit was that the court required too
much proof from the women, too early
in the class-action filing.
“That each individual employee’s
unique circumstances will ultimately
determine whether she is entitled to
back pay or damages should not factor
into the (class-action) determination,”
Associate Justice Ruth Bader Ginsburg
wrote for the minority, which included
the other two women justices. “That
should come only at a later trial.”
That wasn’t the view of the five-
member court majority, all men and all
nominated to the High Court by Re-
publican presidents.
“Members of the class held a multi-
tude of different jobs, at different levels
of Walmart’s hierarchy, for variable
lengths of time, in 3,400 stores, sprin-
kled across 50 states, with a kaleido-
scope of supervisors (male and female),
subject to a variety of regional policies
that all differed. Some thrived while
others did poorly. They have little in
common but their sex and this lawsuit,”
Scalia said, quoting a lower court judge.
Scalia noted Walmart’s employee
handbook forbids sex discrimination.
He said unlimited managerial discretion
at the firm’s local level — a point the
women’s lawyers contested — means it
“can” lead to sex discrimination, not
that it automatically will.
“Left to their own devices most
managers in any corporation — and
surely most managers in a corporation
that forbids sex discrimination —
would select sex-neutral, performance-
based criteria for hiring and promotion
that produce no actionable disparity at
all,” Scalia wrote. “Others may choose
to reward various attributes that produce
disparate impact ... Still other managers
may be guilty of intentional discrimina-
tion that produces a sex-based disparity.
In such a company, demonstrating the
invalidity of one manager’s use of dis-
cretion will do nothing to demonstrate
the invalidity of another’s.”
The justices’ ruling brought Kirby
and more than a hundred other women
out to the court’s front steps the next
day to let the court know it is wrong and
to demand Congress right the injustice
by passing the Paycheck Fairness Act.
Thousands of other demonstrators
nationwide joined the D.C. women,
who included members of the Letter
Carriers, The Newspaper Guild, the
United Food and Commercial Workers
(UFCW), the Coalition of Labor Union
Women, and the American Federation
of Government Employees.
UFCW — which has been cam-
paigning to organize Walmart’s mil-
lion-plus workers for years in the face
of continual company labor law-break-
ing — and the Service Employees In-
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JULY 1, 2011
ternational Union (SEIU) urged Wal-
mart workers to join a new pro-worker
group, the Organization United for Re-
spect at Walmart.
The court “turned its back on collec-
tive remedy for workers facing wide-
spread injustices,” said UFCW Presi-
dent Joe Hansen. “UFCW will continue
to demand accountability from Walmart
to its workers who deserve fair treat-
ment, fair pay and respect on the job.
“Employers like Walmart have long
attempted to isolate workers and pre-
vent them from solving problems to-
gether. This decision will not stop work-
ers from joining together, through
collective action, or prevent them from
continuing to pursue their individual
claims against Walmart,” he stated.
“No single employer has a larger
impact on employment standards than
Walmart. That's why we must stop
Walmart’s race to the bottom,” added
SEIU President Mary Kay Henry.
“This work must be done with Walmart
associates. We can change Walmart,
but we need to work together. Please
encourage all the Walmart associates
you know to join OUR Walmart at
www.ForRespect.org.”
Women’s rights groups also
protested the ruling, and pondered next
moves. “One thing we hope to see hap-
pen is action in Congress, and specifi-
cally passage of the Paycheck Fairness
Act,” which would outlaw employer
bans on workers’ discussions of their
pay on the job, said Anne King, an at-
torney with the National Women’s Law
Center. That bill stalled in the Senate in
2010 as a result of a GOP filibuster. It
has little chance of passing in this Con-
gress.
“We hope the ruling will galvanize
Congress and constituents to push it,”
King added.
Debra Ness of the National Partner-
ship for Women and Families agreed.
“Particularly now, when families
rely more than ever on women’s earn-
ings, women need fair pay and fair op-
portunities for advancement,” she said.
“ This ruling sets a dangerous precedent
that will make it easier for employers
— especially large ones — to discrimi-
nate against their employees while, at
the same time, making it harder for
workers to come together to challenge
it. This creation of a potential ‘large
company’ exception to our civil rights
laws is a perversion of justice.”
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