Wal-Mart “Too Big to Sue” in Gender Discrimination Case?

Yesterday the U.S. Supreme Court considered the legitimacy of Dukes v Wal-Mart, a massive class action lawsuit filed on behalf of 1.5 American million women that accuses Wal-Mart LLC of denying equal pay and equal access to career advancement. The prosecutors are seeking a stop to its alleged discriminatory practices, as well as back pay and punitive damages that could cost Wal-Mart over one billion dollars.

At issue was not whether the plaintiffs, with individual cases dating back to 1998, even have a case. Instances of women earning roughly 77% of what their male peers earned are common; women who qualified for raises but were passed over by their male counterparts with less experience seem to have been the norm for more than a decade. Instead, the “highest court in the land” heard the defense question whether or not millions of women could be included in one single class action suit. Lawyers for Wal-Mart claimed that they could not form an effective defense against the millions of individual cases and that there was no common injury.

The question that Wal-Mart posed, eerily reminiscent of the one made by big banks at the height of the economic meltdown, was: “Aren’t we too big to fail sue?”

It makes sense that Wal-Mart would take this tactic. After all, they’re in good company: several corporations and business groups, threatened by the precedent that Dukes could set for large-scale class action suits, have filed friend-of-the-court briefs siding with Wal-Mart. It seems the largest retailer in the world, whose sales hit $405 billion last year, feels that it, too, is “too big to fail.”

But the six plaintiffs who represent the millions of women are making their claim under the 1964 Civil Rights Act. They argue that “the policies and practices underlying this discriminatory treatment are consistent throughout Wal-Mart.” And each incident of discrimination, if taken to court separately, could pit the largest private employer in the world against one single woman at a time.

Let me repeat that again: one woman against the largest employer in the world.

The question that I would ask the Supreme Court justices, then, who reportedly sided with the corporate behemoth, would be: if corporations have the rights of personhood, as they were recently granted, why can’t individual persons have the same rights as corporations to consolidate their legal claims?

If Wal-Mart LLC, which serves 41 regions, 400 districts, and 3,400 stores housing one million workers in the U.S. alone, is allowed to take each woman to court individually, it will set a precedent not just for the rights of women, but for all individuals. Common law will dictate that corporations and their armies of attorneys will have the same access to justice as individuals with a mere fraction of their money and resources. In a world like that, will there ever be a fair fight?