THE BLOG
03/08/2011 04:00 pm ET | Updated May 25, 2011

Now About the Matter of Size

Tuesday women commemorated the 100th anniversary of International Women's Day -- a worldwide celebration of women's progress. The American piece of this epic story began in Lawrence, Massachusetts, when 25,000 mill workers took to the streets to protest for better wages. One particularly memorable account from the Bread and Roses strike involves several women who surrounded a police officer, stole his gun and then his pants and then tried to throw him in a river. The officer was saved from an icy dunking by fellow members of the force (who were colluding with the mill owners to stop these fierce women from striking). In some countries this day will be remembered with marches; in others, with policy forums and with fundraisers for worthy causes. Here in the U.S., we will best honor our sisters past and present by ensuring that women's progress doesn't come to a grinding halt on March 29th in the hallowed halls of the Supreme Court.

Three weeks from now, the Court will hear arguments in one of the most important civil rights cases in the country's history. Their decision will pave the way for further progress or stop it dead in its tracks. In Wal-Mart v. Dukes, one million employees take on the largest public corporation in the world in a case that could cost the company $1 billion. But this case is about something much bigger than $1 billion, it is about whether or not any American citizen will have the ability to try to stop illegal bias in the workplace. In David v. Goliath, the Supreme Court will decide who gets the slingshot.

The case started when seven female employees of Wal-Mart figured out the corporation was paying men more than women for comparable jobs and was promoting men more often than equally qualified women. More than 100 women presented their personal cases of illegal bias and statistical evidence showed that the preferential treatment was true across the company -- in every region and across job categories from entry level to management. As a result, District Judge Martin J. Jenkins determined -- and the Ninth Circuit agreed -- that the one million women who worked at Wal-Mart in the last decade should be treated as a "class" and as such be able to fight the world's largest corporation together rather than one at a time. Wal-Mart, which serves about 100 million customers a week, appealed, arguing that no one could manage a group of one million people and, because of that, these women could not argue their case as a single class. How will the Court decide and what will be the results?

Consider this -- it is infinitely cheaper to pay off one employee (or bury her in legal fees) and to continue the illegal pay disparity, than it is to pay all employees what they should have been paid all along. By limiting the ability of similar individuals to act as a group, the Court will diminish the individuals' power to challenge a bigger (and richer) wrong-doer. It is only the ability to challenge illegal bias as a group that renders the action economically viable -- for the plaintiffs (and yes, for the lawyers who work for them). Similarly, it is only the threat of action by a group that makes illegal bias economically un-viable for a corporation.

As it happens, in matters of law and money, size does matter.

If the Supreme Court upholds the Ninth Circuit and agrees that "mere size does not render a case unmanageable," regular Americans will be able to challenge illegal bias in the workplace. If the Supreme Court strikes down the Ninth Circuit's decision, they won't.

Slingshot or no slingshot?

With a slingshot you have a chance against Goliath, without it you have none.

By attempting to limit the size of a class, activist conservative judges are reversing years of precedence and weakening the power of individuals to fight illegal bias in the workforce. It's worth noting that after years of discrimination, Lilly Ledbetter has not received a dime of compensation -- thanks to the Supreme Court. A recent study from Cornell Law found that in employment discrimination suits in the federal court of appeals, corporations consistently do better, managing to reverse rulings 41 percent of the time compared to 9 percent for plaintiffs.

One hundred years ago, it was 25,000 mill workers in Lawrence, Massachusetts, who fought for rightful pay and dignified working conditions. Since that time, women have become 50 percent of the U.S. workforce. They are the sole breadwinners in 34 percent of families with children; and the owners of eight million small businesses. Women currently receive 58 percent of bachelor's degrees, 60 percent of Master's degrees and 55.5 percent of Doctorates, our progress will continue. Unless the Supreme Court decides to stop it.

On March 29th, 1,000,000 women of Wal-Mart will take their place in history, but like the strike of Bread and Roses, this fight is about much more than a single company -- or a single group of people regardless how large. This case is about an ongoing and winnable fight to secure the 'Blessing of Liberty' for all of our citizens.

After all, what is more liberating than a paycheck and the economic security that comes with it?

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