Justice for Betty Dukes and the Women of Wal-Mart?

"We, the women of Wal-Mart, will have our day in court," Betty Dukes told me almost seven years ago, declaiming from a park bench near her lawyer's office in Berkeley, California. "[Wal-Mart] will answer our charges--that they have treated us unfairly and we deserved better."

Dukes, who still works at Wal-Mart, is the lead plaintiff in Betty Dukes vs. Wal-Mart Stores, the largest civil rights class action suit in history, which accuses the retail giant of sex discrimination in pay, promotions and hiring. The potential class has at times included more than a million women (recently, though, estimates have run closer to the hundreds of thousands). Dukes and her colleagues have yet to have their day in court, all these years later, and if an army of right-wing opponents has its way, they never will.

The Supreme Court heard arguments yesterday on the certification of Dukes vs. Wal-Mart. That means the justices must now decide, not whether Betty Dukes and her co-workers experienced discrimination--that crucial question may be left forever undecided by our legal system--but whether their case should move forward as a class action suit.

At issue is whether it is possible to make any legal claims at all about institutional discrimination at a large company, as Wal-Mart argues that the class is too large and that plaintiffs' description of its practices not credible: how could so many women encounter sexism from so many managers? Yet female employees at Wal-Mart have been paid less than men in nearly every job category, and promoted less often, despite lower turnover rates and better job performance ratings.

Though legal arguments were made yesterday, a look at the authors of the amicus briefs on both sides shows that the certification of Dukes is really an economic and ideological battle. On Betty's side, liberal groups like Consumers Union, the United Food and Commercial Workers and Public Citizen--anyone who believes that citizens should be able to use the legal system to wrest systemic change from large corporations--have weighed in.

On behalf of Wal-Mart, much fatter cats have rallied, including the US Chamber of Commerce, the Securities Industry and Financial Markets Association, Intel, Altria, Bank of America, Del Monte Foods, Fedex, Microsoft, Costco and many more. In addition to these corporate interests, conservative champions of an even more libertarian order--the Washington Legal Foundation, Atlantic Legal Foundation, New England Legal Foundation--are also lending Wal-Mart their support. Dukes vs. Wal-Mart's opponents are united in their desire to suppress the ability of workers and consumers to sue large companies.

The Supreme Court itself may have an ideological agenda here too. As Jeffrey Toobin and other observers have pointed out, it's unlikely that the Court would have agreed to hear Dukes unless the justices wanted to strike it down. After all, class action suits have been such beloved bugbears of the right, and some of the justices are fierce warriors for conservative causes.

No decision is expected on Dukes for at least a month, and possibly not until the end of June. If the certification is struck down, it will be a triumph for the right, making class action lawsuits even more difficult to litigate and win.

To be sure, the plaintiffs have already enjoyed some victories. The case has exposed Wal-Mart's employment practices to the public, and everyday sexism in its stores no longer goes completely unchallenged. Betty Dukes says the lawsuit has changed Wal-Mart. It is now easier for women to learn about open positions and to enter the ranks of management. "I have personally been thanked by women who have been promoted," Dukes said today, speaking hoarsely, as she has been talking about her case nonstop these last few days.

But even if the Court upholds certification of Dukes and the women do get their day in court, we have to ask why we have become so dependent on such an inefficient means of justice. Betty Dukes brought her case ten years ago, and courts have still not even begun to debate its merits. With stronger unions, more aggressive government enforcement, and better-organized social movements, class action suits like Dukes probably wouldn't even be needed.

Yet the Supreme Court challenge--and ferocious lineup of briefs--is a testament to the tenacity of the corporate elite and of the right. The class action may be a feeble instrument of justice, but it's one of the few we have left, and that's why they're so eager to take it away.