More than 10 years ago, a woman named Betty Dukes decided to take on a corporate giant.
While working at a Wal-Mart store in Pittsburg, California, Dukes endured years with little advancement, and then was hit with a demotion and a pay cut. Instead of quitting or giving up, she fought back. With the help of public interest attorneys from Equal Rights Advocates and The Impact Fund, she joined together with five other women to file a now historic lawsuit, Dukes v. Wal-Mart. The lawsuit charged Wal-Mart with discriminating against women in pay and promotions. Betty Dukes' actions sparked what became an epic battle for gender equality and workers rights, one that would grow to encompass more than a million women Wal-Mart employees.
Her courageous stand against the world's largest private employer suffered a major setback last week when the U.S. Supreme Court, in an ill-reasoned ruling, reversed decisions by both the District Court and Court of Appeals to certify the Wal-Mart women as a class. In doing so, the Roberts Court -- the best Court majority money can buy -- once again came down on the side of powerful corporations, as it did in Citizen's United and other recent decisions. This time the Court made it much harder for workers like Betty Dukes to band together to fight injustice.
While the Supreme Court's ruling will have ramifications for how class actions can be used to challenge big companies that act badly, there is one thing this decision won't do, and that is stop the women of Wal-Mart. "The fight will continue," says Arcelia Hurtado, executive director of Equal Rights Advocates. "Regardless of the hurdles the Court has placed before us, the struggle for equal pay and promotions will continue at Wal-Mart."
Hurtado is right. The question now is, who will join Betty Dukes and tens of thousands of women in this struggle? Who will stand up on behalf of people everywhere who are facing much more powerful corporate interests? Victory in this fight for fairness and justice will require action from all of us. Here is what we can do:
Mobilize an army of good lawyers: The Supreme Court's decision only addressed whether this class action could go forward, not whether Wal-Mart discriminated against women. Even though the class in this case has been decertified, advocates in the case are asking women who may have faced discrimination to demand their rights by pursuing individual claims. Equal Rights Advocates and The Impact Fund have been contacted by thousands of women. As they evaluate their claims, they will reach out to lawyers across the country to make sure the women have counsel to press their cases. In fact, it may still be possible to group some of those plaintiffs into smaller class actions. We need an army of good lawyers to make Wal-Mart fight those claims case by case, in court after court, across the country.
Put our money where our mouth is: The road ahead is not going to be easy, nor will it be inexpensive. The ruling to decertify the class now has made it much more costly for individuals to seek redress in the courts. While litigation is a powerful way to create systemic change on important social issues, few foundations have historically embraced it as an essential advocacy tool. That needs to change. The Rosenberg Foundation has provided nearly $1 million over the past 10 years to help support this fight. Moving ahead, we need more progressive foundations to back the many people going up against Goliaths like Wal-Mart.
Vote with our pocketbooks: As consumers, we can all make everyday choices to reward ethical employers and punish corporate bad acts. If you still shop at Wal-Mart, you can also make your opinions known to store managers and demand workplace fairness.
Push for legislative action: Where is our Betty Dukes Act? Just as prior bad rulings from the Supreme Court have been reversed by sensible legislation, such as the Lilly Ledbetter Fair Pay Act, we need a chorus of voices to push for a legislative fix by calling for Congress and the President to step in on behalf of workers and women.
Betty Dukes and the many thousands of women discriminated against by Wal-Mart have not given up, and neither should we. Wal-Mart may think it won this battle, but whether it will win the war is up to us. If nothing else, this ruling proves that nothing threatens power as much as strength in numbers. Although the ruling might have derailed the options for many injured parties seeking reprieve through large class actions, it cannot prevent millions of us across the country from banding together for remedies against injustice. It's the only way we can ensure that the law can protect all of us, not just the most powerful entities with the deepest pockets.
Timothy P. Silard is the President of the San Francisco-based Rosenberg Foundation.