It’s unanimous. The Supreme Court’s decision in Wal-Mart v. Dukes — decertifying a massive class-action lawsuit in which a handful of women who worked for the company sought to represent some 1.5 million female workers in 3,400 stores in an unprecedented claim of gender discrimination — elevates the rule of law, free-market economics, and individual rights over feminist ideology and trial-lawyer chicanery. Women everywhere should applaud the decision, which was joined by the three female jurists — Ginsburg, Sotomayor,, and Kagan — all of whom are associated with and exalted as exemplars of the feminist movement.
Why should women feel liberated by a decision that eviscerates an attempt to sue for gender discrimination? Because it upholds their rights as individuals who have unique lives, experiences, circumstances, and yes, harms, rather than meld them together in a gender blob. The Court found a lack of cohesion, noting that the 1.5 million “have little in common but their sex and this lawsuit.” This frees any female plaintiff who alleges discrimination to have her day in court.
The decision is also important to the economy and the 2.1 million men and women who currently work for Wal-Mart. Wal-Mart is the largest overall employer in the U.S., and the biggest employer in 25 states. Wal-Mart employment represents a “good deal” for employees, especially those with lower levels of formal education and statistically-lower earning capacities over time. The average wage for hourly employees is $11.75, $4.50 over the current federal minimum wage. Employees are eligible for a variety of extra benefits including bonuses, health-care insurance for both full-time and part-time employees, 401(k) fund contributions, associate stock-purchase programs, profit-sharing plans, and a 10 percent discount on merchandise. Wal-Mart has received national diversity awards.
Hopeful workers, male and female alike, flock to new Wal-Mart stores in search of employment. In 2007, a new Cleveland store received 6,000 applications for 300 openings. In Chicago in 2006 one store received 25,000 applications for just 325 positions. Wal-Mart managers say the typical response to a new store involves collecting between 3,000 and 4,000 applications for somewhere between 300 and 450 jobs, or roughly ten applicants for everyone one available position.
Wal-Mart’s success makes it a constant target of frivolous lawsuits, having been sued 4,851 times in 2000 alone, or about once every two hours. But the Dukes case elevated the potential cost to an entirely new level. The cost to Wal-Mart of being forced to defend the Dukes lawsuit over a decade could total $11 billion. For this same amount of money, the company could have provided full-time jobs with benefits to over 30,000 women for the ten-year period since the case was filed.
Some feminist groups such as Code Pink and NOW have tried to convince women Wal-Mart is sexist and discourage them from shopping at the superstore. These groups have failed miserably. Wal-Mart remains the nation’s most frequented store, with one third of the U.S. population visiting a Wal-Mart every week. Since women do a majority of the household shopping, it is clear that millions and millions and millions of women have walked into, not away from, Wal-Mart in the ten years since the Dukes suit was filed. These same groups bemoaned today’s unanimous decision as a step back for women.
As Wal-Mart flourishes, the feminists flounder. According to a poll conducted by the Daily Beast, only 14 percent of women consider themselves feminists and a similar number would want their daughters to be feminists. Perhaps small enough to be a “certifiable class” of something, but no match for the nation’s largest employer and a regular stop for millions of American women who want value, quality, and consistency.
— Kellyanne Conway is president of The Polling Company.
Given the hilariously overwrought, "press release" style of writing on display here, I'm curious whether Kellyanne's corporate ventures have received any money (directly or indirectly) from the Walton family.
Notice how she completely fails to address the fact that women overwhelmingly failed to receive promotions at Wal Mart, a pattern that doesn't exist at every other major retail chain of Wal-Mart's type (CostCo, Target, etc.). But hey, nothing to see here...
Reply to this commentLinkReport Abuse"These same groups bemoaned today’s unanimous decision as a step back for women."
Canned indeed. Wasn't this decision yesterday?
"...a regular stop for millions of American women who want value, quality, and consistency."
Unless you're talking about their promotion practices, which the Supreme Court blessed due to their lack of consistency.
Anyone who actually shops at Wal-Mart knows that it is anything but consistent, which is exactly what you would expect if executives give local managers as much day-to-day control as they claim.
Some places have greeters, others have surly receipt-checkers. Some adequately staff their checkout lanes, others are content to have customers stand and wait a long time. In some markets, Wal-Mart trounces the competition, in others, it doesn't stack up.
Why some Wal-Mart defenders need to act like it's an awesome store when ostensibly discussing the case's merits is a mystery.
Reply to this commentLinkReport AbuseCouldn't agree more. Wal-Mart isn't a particularly pleasant place to shop, and it isn't much cheaper than other outlets, except when it comes to the lowest quality items. If you want to buy a really cheap toaster oven that will break in three months, go to Wal-Mart. If you want one that will last, any store is as good as the next, and none are as good as the internet.
Reply to this commentLinkReport AbuseSoooo...the Hamilton Beach toaster I bought at Wal Mart, which was 4 bucks less than the same one at Target (same shopping center) is not the same? It's made someplace else, but put in the same exact packaging? Ok, thanks for the heads up. I'll be sure to go someplace else to buy the same item for more money.
Reply to this commentLinkReport AbuseHave you ever been to a Wal Mart? My husband and I make decent money. We do not NEED to shop at Wal Mart, and could conceivably shop wherever we like. We chose Wal Mart almost every time. The Super Wal Mart near our home outside of Chicago is clean, the shelves are kept stocked, the employees are ALMOST always very pleasant and the prices are usually better than anywhere else. We may make a decent income, but that does not mean we want to spend more...just because it's not at Wal Mart. If we know something is cheaper someplace else nearby, we certainly will go purchase it someplace else. But to paint Wal Mart with a broad brush that it sells the lowest quality items is just ignorance.
I know quite a few people who work at Wal Mart and all are very happy with their jobs. They make well above minimum wage, they have very flexible hours, so they can spend time with their kids and not spend the money on daycare, and they get an employee discount to boot. But, I guess that Wal Mart is a terrible company, even though it's one of the largest employers in the country. I guess we shouldn't be supportive of an American company that employs a lot of people.
Have shopped at many Wal-Marts, most of them in rural areas. Glad you love them so much. I don't, and I find the need of conservatives to heap praise upon a company that's entire business model is basically made possible by the totalitarian government of China absolutely laughable. Communists are evil, but not when they are making plastic jack-o-laterns and bath towels on the cheap. And I stand by my claim that while Wal-Mart does indeed have the lowest prices on the lowest-quality items in any given product line, once you get beyond that, the savings it provides are negligible.
Reply to this commentLinkReport AbuseMy daughter-in-law, a successful and talented office manager, searched unsuccessfully in a rotten economy for a year and a half for a job after the family moved to the Midwest from California for my son's job. Finally, the employer that hired her was Walmart. It's now reaping the benefits of her enthusiasm for any job she tackles and appears willing to reward her for her hard work. In less than six months, she was promoted to department head and she doesn't plan to stop there. She sees opportunity and she's thrilled.
Reply to this commentLinkReport AbuseHmmm... 14% of women identify as feminists and 14% would like their daughters to do the same. How many of that 14% actually have daughters?
Demography is destiny.
Reply to this commentLinkReport Abuse@Televangelist: Yes, and the worst part of this press release is that it completely fails to mention that a key part of the decision *wasn't* unanimous--specifically, the part about whether the women in question could qualify as a class. Ginsburg, Sotomayor, Kagan, and Breyer dissented from that part of the majority opinion, believing instead that a lower court should revisit the question.
That seems like it would be important to mention, since it goes to the heart of the view that Conway put forth here, but somehow she doesn't see fit to discuss it. Curious, isn't it?
There are other distortions here. Conway writes that "this [decision] frees any female plaintiff who alleges discrimination to have her day in court." But female plaintiffs were already free to do this; they simply had to opt out of the class, which is easy to do. Conway misses this point too.
Anybody who is really interested in the decision should probably go read it. That'd be better than trusting the opinion of someone who is manifestly unfamiliar with elementary matters of law and key points of the Court's decision.
Reply to this commentLinkReport AbuseLorraine writes: "There are other distortions here. Conway writes that "this [decision] frees any female plaintiff who alleges discrimination to have her day in court." But female plaintiffs were already free to do this; they simply had to opt out of the class, which is easy to do. Conway misses this point too."
WRONG. A major point of the unanimous part of the Court's decision [and I agree with you that it's disingenuous or ignorant to label the opinion as a whole as unanimous] is that the plaintiffs brought the class action under the Federal Rule of Civil Procedure 23(b)(2)--which specifically does NOT allow for a class member to opt out of the class--as opposed to bringing the class action under Rule 23(b)(3), which DOES allow class members to opt out and bring their own lawsuit if they so desire. (In fact, the representative plaintiffs in a Rule 23(b)(2) class action even don't have to give the class members notice of the action.)
As the Court explained, a Rule 23(b)(2) action binds all class members without even notifying them and without allowing them to opt out. It does this because an action under that subsection is supposed to only seek declaratory relief or injunctive relief, not monetary relief to compensate individual class members for their economic or noneconomic damages. Here, plaintiffs wanted the benefits of the streamlined Rule 23(b)(2) action, but they didn't want the limitation of that Rule (i.e., being limited to only declaratory or injunctive relief, as opposed to money damages). The Court--on a 9-0 vote--reversed the 9th Circuit and held that this type of class action--in which money damages (in the form of backpay in this case) are sought--must be brought under Rule 23(b)(3), where all class members must be notified of the lawsuit and must be given the right to opt out of the suit if they wish to do so.
Reply to this commentLinkReport AbuseI have no special love for Wal-mart and no views on the merits of the particular case, but I thought this particular comment hit the nail on the head.
"Because it upholds their rights as individuals who have unique lives, experiences, circumstances, and yes, harms, rather than meld them together in a gender blob"
One critically important point is that the left does not view women as a "blob" for convenience's sake, but as a fundamental part of its worldview. The left is beset with a neo-tribalism wherein it views broad classes of people--women, minorities, etc.--as coherent groups, to be treated as such, not just from a social standpoint, but from a legal and judicial standpoint as well.
But as Karl Popper and others have pointed out, justice at the collective level is injustice at the individual level. The law must always and everywhere resolve down to the level of the individual, and to do so any differently is to undermine liberty. Class action lawsuits are particularly problematic on this subject, and the Court's decision, to narrow the reach of class action suits, is the correct one. To do so any differently would be to assert that we are a society of social units with social rights, rather than a society of individuals with individual rights.
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