Wal-Mart Women's Fight Is Far From Over

What would have been the largest discrimination case in history against the nation's largest private employer will not go forward as a class, thanks to the Supreme Court's decision yesterday. Here's what's next.

"When I go back to work tomorrow, I'm going to let them know we are still fighting," said one Sam's Club assistant manager yesterday. A plaintiff's lawyer said the team would have a three-pronged approach, according to The Times: "Filing individual claims with the Equal Employment Opportunity Commission; slicing the giant class-action lawsuit into smaller ones that would have a better chance of advancement; and pursuing individual discrimination cases."

Still, the women have lost the benefits that come with suing as a class. As Fatima Goss-Graves, the National Women's Law Center's Vice President for Education and Employment pointed out in a conference call yesterday, suing as a discriminated class means that women who didn't have the specific information about how and why they were paid less or not promoted won't have the opportunity to be led by the more egregious or blatant cases — the ones that are out front. The scale of class action lawsuits also helps diffuse the retaliation that these women may fear, as well as the significant legal and time costs for women who are, after all, low-wage workers seeking ultimately small amounts of money in back pay.

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"The problem is, you still have a lot of very individualized questions concerning specific employees, like was someone terminated because she was a bad employee, or because she was a woman?" a class action lawyer not involved with the case told The Times' Stephanie Clifford. "Answering those questions is hard to do without getting into the specific cases of the individual employees."

As such, the decision will have significant ramifications for any plaintiffs seeking class action status in cases against large corporations. It's no coincidence that 20 very large companies filed in support of Wal-Mart in this case.

In fact, at least one corporation had already been preemptively settling a discrimination case out of the mistaken belief that the Supreme Court would make it harder for them soon, Michelle Goldberg notes:

"On Friday, Best Buy settled a class-action lawsuit charging discrimination against women, African Americans, and Latino employees, in part out of concern about the Dukes verdict. "Settlements are often reached when there is uncertainty, and both sides feel that they are at some risk," the plaintiff's lawyer, James Finberg, told Reuters. "So depending upon how the Dukes case comes out, we could be either better off or worse off. And I think Best Buy viewed it similarly."

Best Buy's concern was misplaced, as it turns out, unless the plaintiffs against it were able to meet the standards for a class suggested by the Supreme Court. The Dukes case ultimately failed to convince the majority of justices that it had met those standards, with evidence that included, among other elements, social framework analysis by a sociologist whose work was contested by his colleagues, who said it was invalid without direct research on Wal-Mart.

Legal experts said yesterday that the standard of what constitutes a class has been set at a newly stringent point. As Jeffrey Toobin told Goldberg,

"One of the constants of this court, they don't believe that discrimination exists unless you have direct and obvious proof," said Jeffrey Toobin, author of The Nine: Inside the Secret World of the Supreme Court. "They don't believe in proof by statistics or proof by corporate culture. They are extremely demanding of plaintiffs for proof, and it's very hard to find that kind of proof."

In Slate, Dahlia Lithwick agreed:

As the Lily Ledbetter case showed, the court's devotees of strict construction and plain meaning are so enamored of the printed word that they often seem inclined to accept no other type of evidence of pay discrimination. Just as Ledbetter never received an embossed letter from Goodyear indicating that she was being systematically underpaid, so, too, the hundreds of women with claims about sex discrimination at the hands of Wal-Mart must be wrong: After all, the company's announced policy forbids it, and the perpetrators of the discrimination don't often admit to doing it. The whole purpose of this type of class action civil rights suit is to smoke out unwritten policies and unspoken bias.

Class action lawsuits can move the needle even when they don't succeed either on procedure or the merits. One of the original plaintiffs who brought the case told Bloomberg yesterday, "It shows how the legal system works. But I know in my heart that I made a difference. I didn't get the outcome we wanted, but the minute that we filed the lawsuit, we started getting changes in pay and promotions."

Despite Setback, Plaintiffs To Pursue Wal-Mart Cases [NYT]
Wal Mart Women Vow To Press Bias Fight [Bloomberg]
Wal Mart Case Is A Blow For Big Cases And Their Lawyers [NYT]
Women Lose In Wal-Mart Suit Ruling [Daily Beast]
Class Dismissed [Slate]
Related: Supreme Court To Weigh Sociology In Wal-Mart Case [NYT]