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

Justice Kennedy probed the respondent no less than four times for Wal-Mart’s supposedly “unlawful policy” that caused sexual discrimination. Sellers dodged Kennedy’s questions, claiming Wal-Mart has “a very strong corporate culture” that provides its managers with “unchecked discretion,” and this leads to across-the-board discrimination based on sex. Justice Scalia pointed out a flaw in Sellers’ logic: “If somebody tells you how to exercise discretion, you don’t have discretion.” Sellers conceded to Scalia that Wal-Mart has a written policy against sex discrimination.

Sellers stammered and struggled to answer Scalia’s charge that his reasoning: “…assumes that if there is a disparity between the advancement of women and the advancement of men, it can only be attributed to sex discrimination.” Scalia also questioned how Sellers could fulfill the commonality requirement for class-action certification when his “class” includes women who were both underpaid and women who were not underpaid by Wal-Mart.

Are these women helping others?

This would be America’s largest-ever class-action suit for employment discrimination and would therefore set a powerful precedent. Sexual discrimination lawsuits and complaints are springing up from cocktail waitresses in Atlantic City to students at Yale University. If Betty Dukes et. al. achieves class-action certification, many sexual discrimination suits will gain a crippling new momentum.

Employees who normally would not risk the cost of bringing a weak individual case against their employer will simply pool their story together with others who have remotely similar stories for a class-action suit. As the petitioner’s attorney Theodore J. Boutrous Jr. argued: “Each of the plaintiffs have very different stories. One of them was promoted into a managerial position. One was terminated for disciplinary violations. One was promoted and then had a disciplinary problem and then was demoted.”

American companies cannot afford to employ women and men if they perpetually fear that a handful of employees with disparate claims can hack billions of dollars in damages from their bottom lines.

Women will hurt in the long-run if we become a society where the courts construe individual manager discretion into a formal corporate policy and maintain that a handful of individuals with different stories can form a class and represent millions of others with equally different stories, potentially barring women from individual recourse.

Madeleine Albright once told TIME Magazine: “…it is important for women to help one another. I have a saying: There is a special place in hell for women who don't.” Unfortunately, Betty Dukes et. al. seem poised to hurt, not help, other women if the Court rules in their favor. When feminists play the victim card for money, they often fail to understand the repercussions of their actions.


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."