Katie Kieffer

Sorry boys, Betty Dukes is not a California girl who models daisy dukes. She’s a Californian in her sixties who is leading the charge in Wal-Mart Stores, Inc. v. Betty Dukes, et. al.

Six female plaintiffs, led by Betty Dukes, are current and former Wal-Mart employees with sexual discrimination charges against Wal-Mart. They seek to represent the group of over 1.5 million women who have worked at 3,400 domestic Wal-Mart retail stores since December 26, 1998.

This case has been moving through the court system since 2001. Last spring, the U.S. Court of Appeals for the Ninth District ruled in favor of certifying the class. Wal-Mart appealed and the Supreme Court will decide by June 2011 whether this case qualifies as a federal class-action suit.

Female advocates or feminists?

Women like Dukes seeking walking-around-money (WAM) look at the Court’s demographics and realize that now is their best chance to bring “glass ceiling” grievances against males forward. This is the first time in the Court’s history where three female justices sit on the bench: Hons. Ginsburg, Kagan and Sotomayor.

Throughout the March 29, 2011 oral argument, Justices Sotomayor, Kagan and Ginsburg asked questions that suggested they made their decisions before the argument was even over. Sotomayor blurted out the first question to the respondent’s attorney, Joseph M. Sellers: “What would the injunction look like in this case?” She may as well have said, “How can we help you? You need not waste time arguing the strength of your case.”

At the outset, Ginsburg implied that she was partial to the view that: “…it’s not subjective. …the expert saying that gender bias can creep into a system like that simply because of the natural phenomenon that people tend to feel comfortable with people like themselves.”

The female justices asked numerous procedural questions regarding injunctive and monetary relief and whether defining the class under Class-Action Rule 23 (b) (2) would protect the individual members of the class, including those no longer working for Wal-Mart. They asked whether class members could pursue their individual “fair share” of back-pay and bring forward individual discrimination claims, even beyond this case, without violating res judicata and collateral estoppel.

Case flounders


Katie Kieffer

Katie Kieffer is a columnist and political commentator. She runs KatieKieffer.com. Kieffer is the author of the forthcoming book "LET ME BE CLEAR."