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.