The Showdown Between Women and Wal-Mart

The landmark suit accusing the nation's biggest employer of discriminating against women could mean a big win in the Supreme Court -- or spell the end of civil rights class actions.

From left: Christine Kwapnoski, Stephanie Odle, Patricia Surgenson and Betty Dukes

This week the U.S. Supreme Court will hear a case that may result in the dismantling of one of the largest employment-discrimination class actions ever filed. The case, Wal-Mart v. Dukes, was brought by Betty Dukes and five other lead plaintiffs, who charge that Wal-Mart's corporate policies discriminate against women seeking promotion into management positions at the mega-retail corporation, in violation of Title VII of the Civil Rights Act of 1964.

Much has been written about Dukes, the powerful African-American ordained Baptist pastor and former Wal-Mart greeter who decided to challenge her employer's conduct. Some have likened Dukes to Rosa Parks, and certainly her forthright, fearless stance against the nation's biggest employer has the potential to create a watershed civil rights ruling. But if Wal-Mart has its way, Dukes' suit not only will fail but also may enable the Supreme Court to strike a mortal blow to civil rights class actions.

The class action is a procedural device that allows lawsuits to be brought by a few named individuals who represent -- or stand in the place of -- hundreds, thousands and, in rare cases, millions of individuals with claims against a common defendant. When Congress endorsed the amendment of Rule 23 of the Federal Rules of Civil Procedure in 1966, which govern class actions, it did so with an eye toward supporting the use of class actions in civil rights cases. It was only two years after the passage of the Civil Rights Act, and more than a decade after the best-known civil rights litigation on behalf of a class in history: Brown v. Board of Education

Advancing civil rights claims as class actions has significant benefits. In the 1960s and 1970s, class actions allowed claims to be brought by a few named representatives, while protecting other members of the class who might be subject to retaliation if they participated openly in civil rights litigation. In a class action, the class representatives (in this case, Dukes and the five others) must be available for depositions and other pretrial discovery, for media attention and for communication with the class members.

The more than 1 million class members are not named and will not need to actively participate in the suit unless they are called to appear by lawyers or judges -- and most likely not at all, unless Wal-Mart is found to have in fact engaged in a practice of gender discrimination. Then individual members of the class might play a more active role as the lawyers seek to determine if each class member is entitled to any monetary recovery.

If the parties seek to settle the case, and the court orders Wal-Mart to change its corporate promotions practices, the court may provide an opportunity for members of the class to appear and offer any objections to any settlement the court might seek to impose. Otherwise, members of the plaintiff class who are not class representatives need not take an active role in the case.

In addition, because lawyers typically take class actions based on a contingency fee, the class action device allows plaintiffs -- who individually would not be able to afford a lawyer for a complex civil rights case that might take years to resolve -- to retain counsel willing to invest the time and resources in a case based on the likelihood that he will receive as an attorney's fee a percentage of money recovered by the entire class if the claim is successful.

In the Wal-Mart case, for example, it has been estimated that the average claim for each individual class member would amount to about $1,100. No lawyer experienced enough to take on Wal-Mart would agree to undertake years of litigation to obtain a $1,100 payment for her client. Indeed, $1,100 would not even cover the cost of an initial retainer for a competent lawyer to take up such a case. Without the class action device, a defendant can engage in illegal conduct on a massive scale but will be insulated from civil liability simply by virtue of the fact that the harm to each individual is prohibitively small.

Class actions are particularly appropriate when, as in the Wal-Mart case, plaintiffs charge that a common defendant has engaged in a pattern, practice or common course of discriminatory conduct. Not surprisingly, defendants challenging class actions typically argue that the conduct under scrutiny is not systemic but individual.

In civil rights cases in particular, a typical challenge is the one raised by Wal-Mart, in which a defendant contends that rather than a common course of conduct, plaintiffs are actually challenging a series of highly individualized, fact-specific decisions. Promotion decisions -- Wal-Mart and other defendants in employment-discrimination class actions contend -- are subjective, independent decisions grounded in unique situations for each employee. Wal-Mart would seek to disaggregate the Dukes lawsuit into 1.6 million individual cases -- well aware that only a handful of those cases would ever be litigated because individual plaintiffs could not afford to bring their own discrete claim against the largest employer in the United States.