I truly believe that hell hath no fury like women and unions scorned, so I expect heavyweight boxing over decisions involving Wal-Mart Stores Inc. and Target.
On June 20, the U.S. Supreme Court infuriated many women when it decided against the plaintiffs in Dukes v. Wal-Mart Stores Inc., the largest class-action in U.S. history. The action, involving current and former female Wal-Mart employees, alleged gender-based pay and promotion discrimination. The Supreme Court held that the class should not have been certified and that the back-pay claims were also improperly certified.
The powerful National Organization of Women was caustic: “A Supreme Court majority [5-4] ruled against women by siding with the country’s largest employment discriminator, saying Wal-Mart, essentially, is too big to sue. The brave women, led by Betty Dukes, who stood up to Wal-Mart at great personal sacrifice, are told simply they’re on their own.” NOW is renewing efforts for passage of the Paycheck Fairness Act, which, it says, would provide more effective remedies to victims of sex-based wage discrimination. The bill passed in the House in January 2009, but was defeated in the Senate.
Rinku Sen, president of the racial justice think tank Applied Research Center, called the Supreme Court’s decision “a frustrating ruling that doesn’t challenge the existence of bias, but that exempts the company from accountability.” She asks: “If much, perhaps even most, discrimination is unintentional on a personal level, what responsibility do employers (or our government, or each of us as individuals) have for addressing its institutional consequences?”
The case strikes at the heart of civil rights protection — and not because Betty Dukes is African-American. NAACP President and CEO Benjamin Todd Jealous declares: “The Supreme Court dealt a blow to civil rights and employment equality in its ruling. The NAACP is deeply concerned and profoundly disappointed at the Court’s decision to stifle the right of citizens to stand together and challenge discrimination. When dealing with powerful interests and multinational corporations, the only way to resolve claims of workplace discrimination is through the court system. The Supreme Court sided with corporations over people.”
Wal-Mart, the largest private employer in the United States and the world’s largest retailer, was overjoyed. “As the majority made clear, the plaintiffs’ claims were worlds away from showing a companywide discriminatory pay and promotion policy,” it said in a statement. Gisel Ruiz, a Wal-Mart executive vice president, said the decision “pulls the rug from under the accusations made against Wal-Mart over the last 10 years.”
Three days earlier, employees at a Target store in Valley Stream, N.Y., voted 137-85 against joining the country’s largest retail union. With some of their own workers already restive, other retailers held their breath in the run-up to the vote. Undaunted, claiming illegal intimidation of workers by Target management, United Food and Commercial Workers Union Local 1500 vowed to wage “a 12-round fight for fairness, democracy, justice and change for all Target workers,” beginning with demands for another election and a “Target: Democracy” campaign.
Target insists that it followed all the policies and procedures outlined by the National Labor Relations Board “in a completely lawful manner.” Wal-Mart contends that the Court’s decision effectively ends the lawsuit against it. And the parties are ready to rumble