Rather notes, the Supreme Court won’t be deciding the merits of the case. Duke’s case is now a class action lawsuit on behalf of an estimated 1 million current and former female Wal-Mart employees — the largest gender discrimination lawsuit in American history. Wal-Mart argues that it is, as Rather puts it, "Too Big To Sue."
But the Supreme Court will not be deciding the merits of their discrimination case. What’s at stake is the very definition of what a class action can be. And that has everyone from the captains of big business, to the leaders of the U. S. Chamber of Commerce, to civil rights lawyers very interested in the outcome.
Walmart’s argument is that lawsuit shouldn’t be allowed because a class action that covers so many women, working in different stores, in different states, in different jobs, is just too broad. Lawyers who support the company add that if there is discrimination at a particular store then the women who worked there could come together for a much smaller class action suit.
But lawyers supporting the women say that the only way to fight a corporate giant like Walmart is through strength in numbers. And the reason why the lawsuit includes so many individuals is because Walmart is so big and so many women say they’ve been denied opportunities just because of their sex. They say that if the case isn’t allowed to proceed, the Supreme Court will be establishing that some businesses are too big to sue.
Too Small To Matter
Beyond making some corporations "Too Big To Sue," a ruling for Wal-Mart could make workers like Betty Dukes "Too Small To Matter."
Wal-Mart, like many private sector employers, is non-union, and the company is famously anti-union. The nation’s largest private employer (PDF) has resorted to "legal but heavy-handed" tactics in response to efforts to organize employees, including "a rapid-response team to prevent organization, a hotline for store managers and tips on staying ‘union free’," and even closing stores to prevent employee organizing. The National Labor Relations Board charged Wal-Mart with illegal activity, by "by coercing, intimidating and retaliating against its employees who were seeking a voice on the job" through an employee union.
As a result — like most non-unionized private sector workers, and now also public sector workers in Wisconsin — Wal-Mart employees can’t bargain collectively for better working conditions or living wages. Instead, they have to deal with the company on an individual basis., as Dukes did when she sat down with Wal-Mart, her "negotiations" with the Wal-Mart.
The quest began six years after Mrs Dukes took a $5-an-hour job on the Wal-Mart tills in 1994. She said that she had planned to work hard and advance through the company until she reached management. By 1999 that prospect had been destroyed. A dispute with managers over her chances of advancement ended in a humiliating demotion and pay cut, she said. A lawyer told her that she was not alone in claiming that she had encountered discrimination, and in 2001 the lawsuit was filed in San Francisco. The part-time preacher still works at Wal-Mart, and lives with her mother because, she says, she cannot afford a home of her own on her $15.23 (£9.98) an hour salary. “There are times that I can’t afford my lunch,” she said, wrapping her chicken nuggets in a napkin for later. “But I’m still blessed.”
The global retailer denies accusations of inequality and argues that if there are any instances of discrimination they are isolated, and not a company-wide problem. Wal-Mart says any such cases should be handled as individual lawsuits, not as a class action.
The lawyer who told Dukes that she wasn’t alone was both right and wrong.
When she took her case to Wal-Mart management, she was utterly alone. There was no union representative to advocate for her. There was no unions strength behind her either. In other words, there was no leverage on her side.
In another sense, Dukes was not alone. As she herself put it, casting her dispute with Wal-Mart as a "David v. Goliath" conflict, Duke said "David had five stones, but only needed one." And the one stone wasn’t merely her ability to sue Wal-Mart, but to join her voice with others in a case that — for Wal-Mart — would be "Too Big To Ignore." Without that, Dukes’ case wouldn’t have gotten much further than her meeting with Wal-Mart management.
You Can’t Beat ‘Em
"If you can’t beat ’em, ‘sue ’em," the saying goes. Without collective bargaining, the courts are often the last, best chance for private-sector workers to seek justice in dealing with corporate giants like Wal-Mart. If the Supreme Court agrees with Wal-Mart, that saying will be edited and revised to "You can’t beat ’em."
The most effective way to seek justice against corporations like Wall Mart, is for individual workers (and consumers) to unite in defense of their common interests. Thus, Wal-Mart, wants cases like Dukes’ handled on an individual basis. But the individual has no leverage with large corporate entities. Instead, the individual stands alone against the deep pockets of the corporation.
Even the ability to bring class action suits against large companies is no guarantee of success for the plaintiffs. The case of Alaskan fishermen whose livelihoods were devastated by the 1988 Exxon Valdez oil spill, illustrates this. Brian O’Neill, the attorney who handled the case, pro bono, on behalf of 2,600 hundred fishermen said the case took two decades to wind through the courts because Exxon used its considerable resources to drag the case out.
CNN: Did anything surprise you once you started representing the fishermen and taking on Exxon after the Valdez spill?
O’Neill: I thought that — like a lot of people think now with regard to BP — that Exxon would want to settle the case relatively early and move on and I was surprised a number of times with the fact that this was World War III to them, and they dealt with it that way …
They spent over $400 million on lawyers, essentially defending [against] our claims. They took every appeal they could take and they took every delay they could take and filed every motion they could take.
Don’t kid yourself: the oil companies have the best lawyers money can buy.
CNN: You mentioned the legal system would be one of their biggest problems: can you elaborate on that?
O’Neill: Well if a company is rich enough and powerful enough to hire hundreds of lawyers they can essentially bring the legal system to a halt. They can.
Most of these fishermen no longer believe that the court system of the United States provides equal justice. They’ve come to a conclusion that is the same as the conclusion that I’ve come to, and that is that our governmental institutions will always bail out big oil, and they did here.
In the end, the Supreme court cut the amount Exxon would have to pay to fisherman for damages from the spill down to a fraction of the original amount.
Likewise, without collective bargaining the individual employee pits the individual against an employer with far greater options and resources, equaling far greater leverage. Besides having deeper pockets, employers can use economic conditions as leverage against individual employees. The economic desperation and high unemployment created by the current economic crisis, and perpetuated by conservative politics, means employers have a large and growing supply of people desperate enough to work for lower wages and under worse conditions than individual employees petitioning for better wages and conditions.
For the individual without the power of a union or collective bargaining behind her, that means employers have leverage to negotiate wages and working conditions even lower. And if the employee doesn’t like it? Well, good luck finding better elsewhere.
It’s like pitting David against Goliath, but disarming David first by taking away his slingshot.
That doesn’t mean individuals can’t have an impact. An individual can spark a movement by standing up for himself or herself. It happened in Tunisia, when Mohamed Bouazizi’s protest sparked a revolution. It’s happened in this country before. In 1995 Rosa Parks sparked the Montgomery Bus Boycott, often cited as the start of the modern civil rights movement. According to legend, the 1969 Stonewall riots that launched the modern gay rights moveent began with an unnamed woman resisted a police raid on the Stonewall Inn, a New York City gay bar, shouting "Why don’t you guys do something?", to bystanders waiting to be rounded up. That spark, ignited resistance that night, and a movement that’s continued since.
Individuals can spark movements, but it takes people working collectively, conscious of their common interests, to create far-reaching, long lasting change. That kind of change happens when we are inspired to stand up not just for ourselves, but to stand up for and stand with each other.
That’s what’s under attack in Wisconsin and beyond. Every attempt to extinguish both those individual sparks and the movements they ignite, seeks to pit us against each other, so that we don’t see ourselves or our plights in those of workers in Wisconsin or Wal-Mart employees like Dukes. We become competitors instead of a community. The goal is to keep so busy fighting over table scraps instead, so that we don’t notice the table we’re fighting under or the banquet above.