Posted on 04/11/2011 5:01:35 AM PDT by Kaslin
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.
he missed something these women have in common, every single last one of them.
They all worked for a company with deep pockets. Certainly that is justification for a class action lawsuit.
They’re looking for that big payday, that’s all.
I hope Wal-Mart drags the reputations of these plaintiffs through the mud.
The examples given don't support the contention that women are paid less: a promotion to management? A disciplinary demotion? Those hardly sound gender-based at all.
Of course, I realize that the issue here isn't whether women get paid less for the exact same work (there is no evidence that they do); the issue is that Walmart is perceived as containing rivers of cash, and they want it. I would hope that the members of the Supreme Court realize what is going on here, and dismiss the case. For it to go forward and, worse, to be successful, will have a drastic impact on the economy.
Class action suits have their place. But a class action suit with over a million plaintiffs? There is no way that many people could have suffered identical damages. The suit needs to be tossed on those grounds alone.
“Unexpected side effect” department”
Would anyone care to hazard a guess as to how many NEW jobs were cancelled by prospective employers who were made very nervous by this post? In this country, it has certainly reached the point where the evil employer is automatically considered “guilty as charged”.
Therefore, to maintain your innocence, your dignity, and your solvency, DO NOT become an employer, do NOT let you business grow, buy your needs if made somewhere else, like maybe CHINA.
My business, very, very little, but in need of help. No way am I taking all my clothes to a tailor to have a target sewn on the back. How many are there like me?
They’re looking for that big payday, that’s all.
They’ll each get a ten dollar gift certificate while their lawyahs walk away with hundreds of millions of dollars.
The lawyers will be the only winners.
Only the lawyers will get a big paycheck, not the plaintiffs. The worker's share will be chicken feed.
The bigger picture here is that the SEIU may very well be behind this and similar such suits, past, present and future. After all, if these employees had a union contract to follow instead of company policies, a union steward walking the floor along with company supervisors and union controlled grievance procedures, wouldn't they be better off? That is the pro-union pitch.
Either way the liberals will probably win, either as trial lawyers or union bosses. Both groups give their money to Democrats.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.