Dukes v. Wal-Mart Stores, Inc.

Dukes v. Wal-Mart Stores, Inc., a sexual discrimination lawsuit, was the largest civil rights class action suit in United States history. It charged Wal-Mart with discriminating against women in promotions, pay, and job assignments in violation of Title VII of the Civil Rights Act of 1964.

The case started in 2000, when a 54-year-old Wal-Mart worker in California named Betty Dukes filed a sex discrimination claim against her employer. Dukes claims that, despite six years of hard work and excellent performance reviews, she was denied the training she needed to advance to a higher salaried position. Wal-Mart's position is that Dukes clashed with a female Wal-Mart supervisor and was disciplined for admittedly returning late from lunch breaks.^[1]

In June 2001, the lawsuit began in U.S. District Court in San Francisco. The plaintiffs seek to represent 1.6 million women, including all those who work or have previously worked in a Wal-Mart store since December 26, 1998.^[2] In June 2004, the federal district judge, Martin Jenkins, ruled in favor of class certification under FRCP 23(b)(2).^[3] Wal-Mart appealed the decision.

In 2004, journalist Liza Featherstone published a book about the case, Selling Women Short: The Landmark Battle for Workers' Rights at Wal-Mart in which she contends that Wal-Mart's success is based not only on its inexpensive merchandise or its popularity but also on bad labor practices, a charge she repeated in an article about the case for The Nation.^[4] Featherstone compared Dukes to Rosa Parks.^[5]

On February 6, 2007, a three-judge panel of the Ninth Circuit affirmed the district court's class certification. Judge Harry Pregerson wrote for the majority, which also included Judge Michael Daly Hawkins, while Judge Andrew J. Kleinfeld dissented, criticizing the majority's view of the class certification standards.^[6] Wal-Mart promptly filed for a rehearing and a rehearing en banc, contending that the majority committed legal error with regard to whether the grounds for class action certification had been met.

On December 11, 2007, the same Ninth Circuit panel withdrew its initial opinion and issued a subsequent, superseding opinion that still permitted the class certification.^[7] The panel dismissed the original petition for rehearing as moot in light of its superseding opinion, on the grounds that the revised opinion addresses the legal errors claimed in the petition, although Wal-Mart was permitted to re-file its petition. Among other changes to its original opinion, the Ninth Circuit altered its opinion with respect to the admissibility of expert testimony and the use of Daubert challenges during a motion for class certification. Wal-Mart again filed for a rehearing en banc.

On February 13, 2009, the Ninth Circuit granted Wal-Mart's petition for rehearing en banc on the class action certification.^[8] As a result, the December 2007 Ninth Circuit opinion was no longer effective.^[9]

On March 24, 2009 a panel of eleven Ninth Circuit judges, led by Chief Judge Alex Kozinski, heard oral arguments for the En Banc appeal.^[10] On April 26, 2010, the en banc court affirmed the district court's class certification on a 6-5 vote, with Judge Michael Daly Hawkins writing for the majority and Judge Sandra Segal Ikuta writing for the dissent.^[11] Wal-Mart's lead appellate counsel, Theodore Boutrous, Jr., said in a statement that the decision violates "both due process and federal class action rules, contradicting numerous decisions of other federal appellate courts and the Supreme Court itself," and indicated that Wal-Mart would appeal to the U.S. Supreme Court.^[12] Plaintiffs' counsel argue that "Wal-Mart is attempting to dismantle the Supreme Court's employment discrimination class action jurisprudence [that] would require the Court to overrule 45 years of civil rights and class action precedent."^[13]

Conservative commentators have criticized the lawsuit as an abuse of the class action mechanism.^[14][15][16]

On December 6, 2010, the Supreme Court agreed to hear Wal-Mart's appeal as Wal-Mart v. Dukes.^[17] Oral argument for the case occurred on March 29, 2011.^[18][19]

On June 20, 2011, the Supreme Court ruled in Wal-Mart's favor, saying the plaintiffs did not have enough in common to constitute a class.^[20][21] The court ruled unanimously that because of the variability of plaintiffs' circumstances, the class action could not proceed as comprised and 5-4 that it could not proceed as any kind of class action suit.^[22]

See also

• Criticism of Wal-Mart
• Gender equality
• List of class action lawsuits
• List of gender equality lawsuits
• Mauldin v. Wal-Mart Stores, Inc.

References

1. ^ Malanga, Steven. "The Tort Plague Hits Wal-Mart". City Journal. http://www.city-journal.org/html/eon_06_24_04sm.html. Retrieved 2009-02-23. 
2. ^ Wal-Mart Stores, Inc. Form 10-Q for the Quarterly Period Ended October 31, 2005
3. ^ https://walmart.walmartclass.com/staticdata/walmartclass/classcert.pdf
4. ^ Liza Featherstone, "Down and Out in Discount America", The Nation, Dec. 16, 2004.
5. ^ Corrie Pikul, "Women vs. Wal-Mart, Salon.com, Nov. 24, 2004.
6. ^ Original opinion, February 2007
7. ^ Revised Opinion, December 2007
8. ^ Karen Gullo & Margaret Cronin Fisk, Wal-Mart Wins Request in Bias Case, Washington Post, Feb. 14, 2009, p. D-2.
9. ^ Order for Rehearing En Banc
10. ^ (audio of the en banc hearing)
11. ^ Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010) (en banc). Text.
12. ^ Tresa Baldas (2010-04-26). "Wal-Mart yells 'Supreme Court' after 9th Circuit certifies largest civil class action ever". Law.com. http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202453222347&WalMart_yells_Supreme_Court_after_th_Circuit_certifies_largest_civil_class_action_ever&hbxlogin=1. Retrieved 2011-08-11. 
13. ^ "Wal-Mart Sex Discrimination Class Action Plaintiffs Urge Supreme Court To Uphold Historic Civil Rights and Workers Laws in Brief Filed Today". District of Columbia: Prnewswire.com. 2011-02-22. http://www.prnewswire.com/news-releases/wal-mart-sex-discrimination-class-action-plaintiffs-urge-supreme-court-to-uphold-historic-civil-rights-and-workers-laws-in-brief-filed-today-116669074.html. Retrieved 2011-08-11. 
14. ^ Moller, Mark (Summer 2007). "The Anti- Constitutional Culture of Class Action Law". Regulation. pp. 50–58. http://www.cato.org/pubs/regulation/regv30n2/v30n2-6.pdf. Retrieved 2009-03-12. 
15. ^ Dreiband, Eric S. (January 7, 2006). "Willie Sutton Was a Piker". Wall Street Journal. http://online.wsj.com/article/SB113659795209840464.html?mod=opinion&ojcontent=otep. Retrieved 2009-03-12. 
16. ^ Article | These actions have no class
17. ^ http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-277.htm
18. ^ [1]
19. ^ "10-277.exe" (PDF). http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-277.pdf. Retrieved 2011-08-11. 
20. ^ SCOTUS decision, June 20, 2011
21. ^ Daniel Fisher (2011-06-20). "Supreme Court Dumps Wal-Mart Sex-Discrimination Class Action". Blogs.forbes.com. http://blogs.forbes.com/danielfisher/2011/06/20/supreme-court-dumps-wal-mart-sex-discrimination-class-action/. Retrieved 2011-08-11. 
22. ^ http://www.salon.com/news/feature/2011/06/20/supreme_court_sides_with_wal_mart/