The United States Supreme Court is set to hear a sex discrimination case brought against the largest private employer in the states. Although Walmart v. Dukes began with a small group of female workers, it has since grown into a class action including close to 1.5 million women who work or have worked at Walmart stores, making it the largest class action employment suit in United States history.
Without addressing the merits of the gender discrimination claim, Walmart is challenging the class action status itself. Walmart asserts that the plaintiffs are too diverse to qualify for class action status. If Walmart prevails in its argument, the female employees will have to file lawsuits individually. This would put women at greater risk for retaliation and make it less economically possible for women to pursue claims against Walmart. Additionally, splitting the claims would potentially lead to many inconsistent rulings and increase judicial expenses, going against the spirit of Rule 23 of the Federal Rules of Civil Procedure, which sets no limit to the number of class action litigants and allows cases to be more efficiently litigated.
The Women’s Law Project has joined in an amicus brief asserting that workplace gender discrimination is properly addressed in this class action and that this class is unified since subjective decision making practices affected all women within the class. The brief highlights evidence of general beliefs that women should not be primary breadwinners and other assumptions of women’s availability and competency which caused women to be devalued in the workplace and restricted promotion opportunities. There was also evidence that the employers were purposely secretive about payment of male counterparts who earned more than the female employees. The Supreme Court is expected to issue its decision on the case in June.
The National Women’s Law Center, which co-authored the brief with the ACLU, is collecting messages of support for the Walmart women. You can add yours here.