Why the Wal-Mart Supreme Court Case MattersMarch 24, 2011
Arcelia Hurtado, executive director of Equal Rights Advocates (ERA), a national nonprofit legal organization, took time out of her busy schedule to do a quick interview about the AAUW-supported case Dukes v. Wal-Mart. Oral arguments for the case take place on March 29, 2011, at the U.S. Supreme Court.
AAUW Legal Advocacy Fund Program Manager Holly Kearl (HK): How long has ERA been involved with Dukes v. Wal-Mart?
Hurtado (AH): ERA has represented the women of the historic Wal-Mart class action since day one. ERA began receiving complaints from Wal-Mart women employees through our Advice and Counseling Hotline in 1999. ERA helped lead plaintiff Betty Dukes file her original complaint in this case with the U.S. Equal Employment Opportunity Commission. ERA, along with co-counsel, filed the class-action lawsuit in 2001 on behalf of Betty Dukes and six other women representing a class of women workers similarly situated.
In 2002, ERA and co-counsel then traveled the country talking to potential class members and taking their statements in support of our class-certification motion, which was filed in 2003 and granted in 2004. … Wal-Mart has since vigorously appealed that decision, and ERA has remained with the women of Wal-Mart through the case’s long journey through the appellate process and all the way to its current resting place on the U.S. Supreme Court’s docket.
HK: What are the legal issues that will be addressed in the Supreme Court oral arguments on March 29?
AH: The plaintiffs presented extensive evidence in the trial court, which the trial judge ruled was sufficient to allow them to proceed as a class. The 9th U.S. Circuit Court of Appeals affirmed this decision two times. The U.S. Supreme Court is now going to decide whether the trial court that heard and considered all this evidence firsthand erred in granting class certification.
The evidence the trial and appeals courts reviewed consisted of Wal-Mart’s own internal employment data, which revealed, among other things, that even though 65 percent of Wal-Mart’s 1 million hourly employees were women, women held fewer than one-third of management jobs and only 15 percent of store manager positions, making Wal-Mart one of the worst American retailers in terms of percentage of women in management.
The internal data also showed that women were paid less than men of equal seniority in every major job category, even though women on average had higher performance ratings and less turnover. Statistical analysis indicated that the odds that this discrepancy in pay could be attributable to chance were “less than one chance in many billions.”
The hard numbers indicating something was very wrong at Wal-Mart were supplemented by the statements of Betty Dukes and over 100 other women employees who experienced similar treatment at Wal-Mart locations nationwide.
HK: Why is the outcome of this hearing so significant?
AH: Legal scholars have repeatedly outlined the implications of this, the largest employment class action in U.S. history, but what is first and foremost in my mind is the case’s significance to the courageous women who constitute the members of the class.
In the words of named plaintiff Edith Arana,
These women have names, they have families, they have faces. … This is something that I am determined to do until the end, whatever the end is, because I believe in what I am doing, and what I am doing is right.
The case also stands for the right of every working woman to be paid what her work is worth and to be given an equal opportunity to advance based on her merit. It implicates the American dream that if you work hard enough, you can get ahead. It implicates the fate of the working class in this country — women who have families to support, who are single mothers, who are struggling to make ends meet and failing due to systematic discrimination that is unfortunately not a relic of the past yet.
In the words of Betty Dukes,
I’m just existing, I’m not living at all. … With my age and my limited education, I had to press forward and maintain my independence, maintain my dignity even though I am not making a living wage by any stretch of the imagination, and there’s nothing I can do about it.
I saw a pregnant woman standing in the rain the other day. She had a baby, only a few months old, in a stroller. She told me she was homeless. I had my own two small boys in the car with me, and it struck me that this is the fate of the working poor who are constantly a hair away from losing their ability to survive. These are the human terms of this case. As long as ERA is involved, they will not be forgotten.
HK: It’s so important to remember the human aspect of the case, thank you. When do you expect the court to announce their decision?
AH: We expect the court to issue an opinion by June of 2011.
HK: Thanks for the important work you and ERA are doing!
AH: Sure. And your readers can obtain more information about our work at www.equalrights.org. We also have a toll-free, multilingual advice and counseling line for women with questions related to inequities at work and schools 800/839-4372.