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?

CLIO TALKS BACK: Oh, That Explains the Difference? or Why is Equal Pay for Equal Work so hard to translate into reality?

Women’s demands for equal pay for equal work are as old as history. European societies provide abundant documentation of such claims. Why? Because male authorities decreed that women who worked for pay should only receive one-half to two-thirds the pay of men. This was long before the "male-breadwinner model" began to be explicitly laid out.

Already in the year 1348, municipal authorities in Marseille set the wages for workers: 4 sous a day for men and 2 sous 6 deniers for women. [Such laws also dictated what women could or couldn’t wear in the way of gold, silver, and jewelry].

Leeds Postcards

Low Pay / Sex Difference

Flash forward! In 1869, in the first issue of Le Droit des Femmes, the feminist Maria Deraismes claimed equal pay as one of the objectives for the French women’s rights movement, a claim that would be repeated incessantly for the next 75 years.

When the Swiss women’s rights publication Le Mouvement féministe first appeared in Geneva in 1912, its motto was “A travail égal, salaire égal.” In translation: “for equal work, equal pay.” There was nothing hard to understand about this demand.

The Treaty of Versailles, which officially ended World War I, founded the International Labour Organization and contained a proviso guaranteeing equal pay for equal work. All signatories to the Treaty promised to support this proviso, among many others.

In France, the principle of equal pay for equal work was finally instituted in 1946, by the decree of 30 July 1946. Other European countries have also agreed, at least in theory, to this principle. But enforcing it has been another story.

At the United Nations in March 1948, the Economic and Social Council approved “the principle of equal remuneration for work of equal value for men and women workers.”

In December 1948 Eleanor Roosevelt insisted that the principle of equal pay for equal work be included in Article 23.2 of the Universal Declaration of Human Rights in 1948. “Everyone without any discriminhation, has the right to equal pay for equal work.”

In 1986 The United Nations General Assembly passed a resolution on the role of women in society, in which (among other provisions) it invited member states “to encourage such social and economic development as will ensure the equal participation of women in all spheres of work activity, equal pay for work of equal value, and equal opportunities for education and vocational training.”

So why are American women today still having to demand equal pay for equal work? Why in 2011 do we need to designate a day (April 12, 2011) as Equal Pay Day?

Clio would like your ideas: Why is it taking so long to write Equal Pay into the laws of the United States? Why in other countries, even when equal pay for equal work is mandated by law, is it so difficult to enforce this law? What are the obstacles that stand in the way of this eminently fair demand?

MAKE CHANGE: Sign Off on Fair Pay

In the U.S., women continue to make only $0.78 to every man's dollar for a day's work. Last year's passing of the Lily Ledbetter Fair Pay Act (Obama's first piece of legislation in office) was a step in the right direction, but the companion legislation, the Paycheck Fairness Act, stalled in the Senate and has yet to be passed.

Now, a year later, Obama has once again thrown his support behind fair pay legislation by encouraging the Senate to pass the Paycheck Fairness Act this term, saying, "This is not just a question of fairness for hard-working women. Paycheck discrimination hurts families who lose out on badly needed income. And with so many families depending on women's wages, it hurts the American economy as a whole."

Make Change by telling your representatives that you agree: the National Organization of Women (NOW) has made it incredibly easy for you to send a message to your representative asking them to ratify the Paycheck Fairness Act! Because not only could we all use that extra $.022 an hour, but we sure as hell deserve it. Send a message to your Senators today>>


For Women, What a Difference a Year Almost Made [Huffington Post]
Obama Endorses Paycheck Fairness Act [USA Today]
Facts About Equal Pay [National Organization of Women]