Wal-Mart v. Dukes
Will the Supreme Court Protect Wal-Mart’s Discrimination Against Women?
I.
Overview
The ability of the world’s largest retailer, and largest private employer in the United States, to
discriminate on a massive scale against its female employees is at stake in the biggest case of the
U.S. Supreme Court’s 2010-11 term – Wal-Mart v. Dukes. 1
In Dukes, the district court
approved, and the en banc Ninth Circuit Court of Appeals upheld, certification of a class action
brought by Betty Dukes and others to hold Wal-Mart accountable for suppressing women’s pay
and promotion for more than a decade. 2 Despite detailed findings by the lower court and the
lack of a circuit split on the issues in dispute, the Roberts Court accepted Wal-Mart’s appeal. 3
Powerful corporations like Wal-Mart have consistently enjoyed a home field advantage when
litigating in front of the Roberts Court. 4 Since 1953, corporate interests have won just 42
percent of the time in the Supreme Court, but that percentage has jumped to 61 percent in the
Roberts Court, with three of the seven most pro-corporate terms occurring during Chief Justice
Roberts’ first five years. 5 Just last term, the Roberts Court ruled in favor of the side that the U.S.
Chamber of Commerce supported in 13 of 16 cases. 6 The U.S. Chamber, and a wide array of
other large corporate interests, have lined up on Wal-Mart’s side in this case. 7
Why is Wal-Mart v. Dukes so important? When Congress passed Title VII as part of the Civil
Rights Act of 1964 to prohibit discrimination in employment, women working full time were
paid approximately 59 percent of what men were paid, on average. 8 Today, nearly 37 years
later, women are paid only 77 percent of what men are paid. 9 Over an average lifetime of work,
this difference will result in a loss of $700,000 for a female high school graduate, $1.2 million
for a college graduate and $2 million for a professional school graduate. 10 Working women and
their children also experience higher rates of poverty than men, and have a greater need for
public assistance to obtain health care, including those working at Wal-Mart. 11
If our Nation’s largest employer – with approximately 1.4 million employees, more than 860,000
of whom are women, 12 a large percentage of whom are women of color 13 – can avoid liability
for systemic discrimination across its nationwide chain of stores, it will undermine the equal
rights of all women workers. Moreover, any ruling by the Roberts Court that makes it harder for
employees to bring a class action will remove an important safeguard that protects workers when
they suffer discrimination. In today’s political climate, corporations are eager to roll back the
clock and destroy many of the gains workers made during the Civil Rights era. 14 Wal-Mart v.
Dukes could dramatically boost or inhibit those efforts, depending on how the Court rules.
II.
Spotlight on Wal-Mart v. Dukes
This case is before the Supreme Court on the question of whether class certification is proper,
which turns in large part on perceptions of who is to blame for the wide disparity in pay and
promotion levels between men and women working for Wal-Mart. Wal-Mart argues that there is
no common bond between thousands of pay and promotion decisions made by its managers
across the country. Plaintiffs counter that Wal-Mart’s system of granting vast pay and promotion
discretion to its upper-level managers, nearly all of whom are men trained by Wal-Mart to
embrace and promote the company’s practices, yielded discriminatory results that pervade every
region and nearly every store within Wal-Mart’s vast retail empire.
To understand how Wal-Mart operates, it is important to review evidence submitted in this case.
A. Personal Stories Demonstrate the Harm that Wal-Mart’s Discrimination Has Done to
its Women Employees.
When Betty Dukes started at Wal-Mart, she was energetically committed to advancing within the
company. 15 She dreamed of working her way up from a $5-an-hour part-time cashier position
into corporate management. 16 Instead, she toiled for several frustrating years with very few
opportunities for advancement. 17 After discussing her concerns with a
district manager, store managers retaliated against her. They wrote
If our Nation’s largest
her up for returning late from breaks despite the fact that male
employer can avoid
colleagues evaded punishment after doing the same thing or after
liability for systemic
failing to clock out at all. 18 Dukes later received a demotion and pay
cut for asking a colleague to let her make change from a cash register,
discrimination, it will
even though this was a common employee practice. 19 The financial
undermine the equal
strain forced Dukes to move in with her mother. 20
rights of all women
workers.
Dukes has said she hopes this case will change Wal-Mart’s practice of
blocking women from entering management, and will ensure women
21
A Baptist minister, she put her “Betty vs. Goliath” struggle in biblical
receive equal pay.
terms, stating that, “David had five stones but only needed one.” 22
Edith Arana, another named plaintiff, accepted a $7-an-hour job at Wal-Mart after 10 years in
retail because she believed that Wal-Mart was “a family-based company” where “you can come
in as a cashier, and the sky is the limit.” 23 Arana often took on heavy workloads, was
commended for going “beyond what is expected” and was praised for doing “an outstanding job
filling in where she is needed—anywhere, anytime.” 24 Nonetheless, management consistently
denied her promotions and gave them to men with less experience. 25
Arana also tried to enlist in Wal-Mart’s assistant manager training program, but was consistently
denied. A store manager promised to recommend Arana for the program but reneged after she
was forced to take sick leave after a car accident. 26 This missed opportunity became particularly
important when Arana became the sole breadwinner for her husband and three children after her
husband developed liver cancer. 27 Arana felt that no matter how well she performed, store
2
management would not allow her to advance because she was a woman. 28 Eventually, her heavy
workload led a doctor to order her to take leaves of absence. 29 Arana called herself “destroyed
and devastated” by her experience with Wal-Mart. 30
B. Personal Stories Confirm That Gender Discrimination Pervaded Wal-Mart.
In addition to the testimony of Betty Dukes and Edith Arana, more than 110 other women filed
declarations detailing stories of discrimination while working at Wal-Mart. For example:

Senior management for Sam’s Club, a Wal-Mart affiliate, often referred to female store
employees during Home Office executive meetings as “Janie Qs” and “girls.” 31 When a
female executive who was new to the company objected to the terms, the criticism was
not well received and senior managers continued to use them. 32

A Wal-Mart company newsletter featured a photograph 33 from a company event showing
Wal-Mart’s Executive Vice President of Operations and Chief Operating Officer posing
on a leopard-skin stiletto high-heel-shoe chair while surrounded by women singing and
dancing. 34

When a female employee with five years at Wal-Mart and a Master’s Degree asked her
department manager why her pay was less than that of a just-hired 17-year-old boy, the
manager said: “You don’t have the right equipment.…You aren’t male, so you can’t
expect to be paid the same.” 35

A manager told plaintiff Chris Kwapnoski that she needed to “doll-up” and “blow the
cobwebs off” her make-up. 36

A store manager also told Kwapnoski that he gave a male associate a larger raise because
the male associate had “a family to support.” 37 This was a common refrain from WalMart managers. 38

A male department manager told a female employee that male employees will always
make more than female employees because “God made Adam first, so women would
always be second to men.” 39

During a job interview to be a department manager, an assistant manager told Cleo Page
that it was man’s world and that men control managerial positions at Wal-Mart. 40

A male support manager responded to a female employee’s request for a transfer to
Hardware by asking, “[y]ou’re a girl, why do you want to be in Hardware?” 41

When a female district manager asked a male store manager why he always put female
assistant managers in charge of Softlines, he responded “because that’s what women
know.” 42
3

When a female employee with experience in Sporting Goods expressed interest in
becoming a Sporting Goods department manager, a male assistant manager told her,
“[y]ou don’t want to work with guns.” 43

When a female employee sought a position as a meat cutter, a male meat manager told
her that Wal-Mart does not hire women as meat cutters. 44 Similar arguments were used
by managers to keep women out of the Electronics 45 and Domestics departments. 46
The bias against women also pervades the Walton Institute, a company training center that
“provides an educational environment for Wal[-M]art leaders from around the world to learn
more about themselves and about Wal[-M]art’s unique company culture and how to sustain that
culture.” 47 At Institute sessions, participants in a discussion on diversity within the company
were told that so few women were managers because “men have been more aggressive in
achieving those levels of responsibility.” 48 Company executives and
managers also said that promoting women would require standards to be
Plaintiff’s statistical
lowered. 49
expert found that
women were paid less
than men in every
year, and in virtually
every job, even when
relevant nondiscriminatory factors
were considered.
Sam Walton, Wal-Mart’s founder, was an avid quail hunter and from
the earliest days of the company invited top managers to an annual quail
hunt. 50 When women urged an alternative bonding experience, it was
rejected as interfering with tradition.51 One woman who was hired from
outside to be a Vice President of Sam’s Club described Wal-Mart as a
“very tight, deep culture” and “very closed.” As she recalled, “I didn’t
go hunting with them, I didn’t go fishing with them, I wondered if I had
been able to do some of those things if I might have assimilated more
quickly into the organization.” 52 Female store managers were also
required to attend business functions at strip clubs and Hooters. 53 Wal-Mart’s Executive Vice
President for People defended holding a district meeting at Hooters by claiming it was “one of
the best places to meet and eat” in town. 54
C. Additional Evidence Demonstrates Wal-Mart’s Long History of Discrimination
Against Women.
At the time this lawsuit was filed in 2001, Wal-Mart divided the United States into 41 regions. 55
Each region contained approximately 11 districts, and each district contained six to eight
stores. 56 Overall, there were more than 3,000 stores. 57 The lawsuit also includes Sam’s Club,
which is wholly owned and run by Wal-Mart. 58
Plaintiff’s statistical expert, Dr. Richard Drogin, found that women employees at Wal-Mart were
paid less than men in every year, and in virtually every job, even when relevant nondiscriminatory factors were considered. 59 This pattern was found in every one of the 41 WalMart regions. Moreover, the disparity in pay between comparably employed women and men
has increased every year since 1997. 60 Strikingly, this disparity exists despite the fact that
women, on average, have longer tenure at Wal-Mart – 4.47 years v. 3.13 years – and higher
performance ratings. 61
4
Promotions are an equally dismal story for women at Wal-Mart, even though Wal-Mart promotes
mostly from within and most of its employees are women. As the table below illustrates, women
remain in hourly positions while management positions are awarded overwhelmingly to men,
with the percentages of male domination increasing at nearly every stage up the ladder. Women
who are promoted also wait longer than men for those promotions. 62
The following table demonstrates the pay and promotion differential for field management
positions and the three largest hourly job categories in 2001, the year this lawsuit was filed. 63
Job Title
Men
Women
Difference
Percent Held By
Women
Regional Vice President
District Manager
Store Manager
Co-Manager
Assistant Manager
(salaried)
Management Trainee
$419, 435
$239,519
$105,682
$59,535
$39,790
$279,772
$177,149
$89,280
$56,317
$37,322
$139,663
$62,370
$16,402
$3,218
$2,468
10.3%
9.8%
14.3%
23%
35.7%
$23,175
$22,371
$804
41.3%
Department Head
(hourly)
Sales Associate
Cashier
$23,518
$21,709
$1,809
78%
$16,526
$14,525
$15,067
$13,831
$1,459
$694
67%
67% 64
The massive disparities between men and women in these statistics support a prima facie case of
employment discrimination. 65 One reason for this is the stark break between hourly department
managers, the vast majority of whom are women, and the next management level up, where
employees are trained for salaried management positions. (See the entries above and below the
black line in the table.) To move upward, an employee at Wal-Mart needs to receive a
discretionary “tap on the shoulder” from upper-level management, which is overwhelmingly
male. 66 Women cannot apply for this promotion. 67 Overall, if plaintiffs’ class certification is
upheld, they will have a strong case of pattern-or-practice or disparate impact discrimination. 68
Indeed, Wal-Mart has among the worst records of American retailers in the percentage of women
in management, prompting the company’s Executive Vice President for People to say that “we
are behind the rest of the world.” 69 Wal-Mart had a far lower percentage of female managers in
2001 than their closest competitors had in 1975. 70 When this lawsuit was filed, women
comprised 34.5 percent of Wal-Mart’s managers, compared to 56.5 percent of comparable
retailers’ managers. 71 One of plaintiffs’ experts put the odds that this discrepancy can be
explained by chance as “less than one chance in many billions.” 72
III.
Wal-Mart’s Company-Wide Pattern of Sex Discrimination Makes
Dukes a Textbook Class Action Case That Demands Certification.
A. The Lower Courts Certified Dukes’ Class Action.
Plaintiffs are seeking certification of a class action under Federal Rule 23 in order to hold WalMart accountable for discrimination violating of Title VII of the Civil Rights Act of 1964. Title
5
VII prohibits employers from depriving or tending to deprive “any individual of employment
opportunities or otherwise adversely affect[ing] his status as an employee because of such
individual’s race, color, religion, sex, or national origin.” 73 Rule 23(a) allows certification of a
class action if:
1. The class is so numerous that joinder of all members is impracticable;
2. There are questions of law or fact common to the class;
3. The claims or defenses of the representative parties are typical of the claims or defenses
of the class; and
4. The representative parties will fairly and adequately protect the interests of the class. 74
Wal-Mart has among the
worst records of American
retailers in the percentage of
women in management,
prompting the company’s
Executive Vice President for
People to say that “we are
behind the rest of the world.”
Plaintiffs must also meet one of the Rule 23(b) requirements.
Rule 23(b)(2), which applies in this case, allows certification if
“the party opposing the class has acted or refused to act on
grounds that apply generally to the class, so that final injunctive
relief or corresponding declaratory relief is appropriate
respecting the class as a whole.” 75
Plaintiffs sought certification of a sex discrimination class action
against Wal-Mart in federal district court in San Francisco in
2001, requesting injunctive relief, back pay, and punitive
damages. Wal-Mart argued that the plaintiffs’ accusations were
“a relative handful of widely divergent, and often unique,
events” that rendered a class action an inappropriate remedy. 76 The district court rejected this
argument, finding in an 84-page decision that plaintiffs had “exceeded” their burden of
establishing commonality and had demonstrated that Wal-Mart’s company-wide policy of
subjective decision-making, within a consistent compensation and promotion structure, raised
questions of fact and law common to the class. Therefore, the court certified the plaintiffs’ class
of current and former female employees. 77 The en banc Ninth Circuit Court of Appeals upheld
class certification for current employees but told the district court to consider a separate class for
women who left Wal-Mart prior to the date the case was filed. 78 The Ninth Circuit also
remanded the district court’s certification of plaintiffs’ claim for punitive damages. 79
B. The Core of the Case Supports Certification.
Wal-Mart argues that the plaintiffs’ theory of liability should fail because of Wal-Mart’s sheer
size. 80 The company maintains that the large number of its stores, managers, and employees
means that pay and promotion decisions “turn[ed] on decisions made by individual store
managers” and cannot support the commonality among class members that is required for class
certification. 81
Plaintiffs counter with a powerful narrative that shows how sex discrimination at Wal-Mart was
the inevitable byproduct of a strong and centralized corporate system that originated in the
company’s Home Office in Bentonville, Arkansas, and permeated each of the company’s stores
in the United States. 82
6
The key issue here is not the size of Wal-Mart. After all, if the core of an apple is rotten, it does
not matter how large the apple is – it is still rotten. The issue is whether Wal-Mart’s
employment system perpetuated a male-dominated hierarchy that suppressed women’s
promotion and pay throughout Wal-Mart’s thousands of stores. The answer to this question is
clearly yes.
Don Soderquist, the company’s former vice chairman and chief operating officer, wrote in his
book The Wal-Mart Way that Wal-Mart is “intentional about dispersing our culture throughout
the company and determined that our values and beliefs be on the mind of every associate.” 83
Soderquist describes the numerous meetings that occur for employees at every level of the
company’s hierarchy and writes that “we have taken advantage of every single one of these
opportunities to preach Wal-Mart culture.” 84
Wal-Mart’s engrained practices are also maintained by promoting from
within and requiring people in line to become assistant managers – the
lowest salaried management position – to go through a 4-5 month
training program at the Walton Institute, where the message is that
women are not aggressive enough and would lower standards if
promoted to management. Once employees become Store Managers,
they are also required to relocate regularly, which spreads Wal-Mart
culture but disadvantages women who typically have less flexibility
than their male counterparts to relocate suddenly. 85 Sam Walton, the
company’s founder, recognized as early as 1992 that this requirement is
unnecessary for business purposes and deprives the company of talented
female managers, but the policy remains. 86
The key issue here is
not the size of WalMart. After all, if the
core of an apple is
rotten, it does not
matter how large the
apple is – it is still
rotten.
Centralized control at Wal-Mart is pervasive. All personnel policies, including compensation
and promotion guidelines, are set by the Home Office. 87 Each store has the same job categories,
job descriptions, and management hierarchy. 88 Regional management meets at least weekly at
the Home Office to discuss developments in individual stores. The company has a sophisticated
computer network that allows the Home Office to monitor daily activities at every store. 89
Managers are tied to the Home Office through a computer link called the Manager’s
Workbench. 90 The Home Office controls each store’s temperature and mandates what music
will be played inside. Wal-Mart also has a strict anti-union policy that it enforces uniformly
throughout its stores. 91
Within the context of this highly uniform corporate structure devoted to pushing the “Wal-Mart
Way,” Store Managers, District Managers, and Regional Vice Presidents – more than 85 percent
of whom are men, and most of whom have been trained at the Walton Institute – get to make
largely unfettered pay and promotion decisions. Under Wal-Mart’s employment system, there is:




No criteria for making promotion selections;
No oversight or systematic review of compensation or promotion decisions;
No posting of most promotion opportunities; and
No written information about the management trainee program, and no ability for hourly
employees to apply for it.
7
In addition, Wal-Mart managers can:



Offer raises based on undefined “exceptional performances;”
Depart from starting pay rates for whomever they choose; and
Through a “tap on the shoulder,” decide who becomes a management trainee.
The result is a system in which male managers promote people like themselves who accept and
perpetuate Wal-Mart’s male-dominated corporate structure.
A law firm hired by Wal-Mart
six years before this lawsuit
found that men were five and a
half times as likely as women to
be promoted into salaried
management positions, yet WalMart ignored the firm’s advice
and continued its practices.
Tellingly, Wal-Mart knew at least six years before this
lawsuit was filed that its employment practices would likely
be seen by courts as discriminatory and subject to class-wide
relief, after it hired a prominent law firm to evaluate whether
its policies promoted sex discrimination. 92 Akin Gump
found widespread gender disparities. “By one measure, the
law firm found, men were five and a half times as likely as
women to be promoted into salaried, management
positions.” 93 The law firm advised Wal-Mart to take
remedial steps in 1995, but Wal-Mart ignored the advice and
continued its practices. 94
As a legal matter, the Supreme Court has recognized that Title VII should apply when “an
employer’s undisciplined system of subjective decisionmaking has precisely the same effects as
a system pervaded by impermissible intentional discrimination.” 95 A strong corporate structure
“creates the context – the policies, the decisionmaking systems, the work environment and
culture – in which individual decisions are made.” 96 These holdings support liability here.
IV.
What’s At Stake for American Workers?
If the Roberts Court rules for Wal-Mart and raises the bar for maintaining a class action, the
result could be devastating for enforcement of civil rights and employment discrimination laws.
Some of the most important civil rights cases in American history were class action lawsuits.
Brown v. Board of Education ended racial segregation in public schools in a class action. Griggs
v. Duke Power empowered employees to remedy seemingly neutral policies that
disproportionately harmed racial minorities. The pollution case portrayed in the movie Erin
Brockovich and the sexual harassment case portrayed in North Country were also class actions. 97
Class actions have allowed for historic civil rights gains because of the unique tools they provide
to combat discrimination and other forms of corporate misbehavior.
A. Class Actions Enable Workers to Level the Playing Field Against Huge Corporate
Defendants Like Wal-Mart.
Class actions play an essential role in holding corporations accountable for their widespread
unlawful behavior, particularly when the harm suffered by each individual is small relative to the
larger discriminatory picture. An individual is far less likely to enforce rights in court if the
8
recoverable damages are too small to justify the cost of lengthy litigation or arbitration, a fact
which often allows corporations to get away with unlawful conduct. The Supreme Court has
recognized this function:
The policy at the very core of the class action mechanism is to overcome the
problem that small recoveries do not provide the incentive for any individual to
bring a solo action prosecuting his or her rights. A class action solves this
problem by aggregating the relatively paltry potential recoveries into something
worth someone’s (usually an attorney’s) labor. 98
As a result of the relative disadvantages of filing an individual claim, most plaintiffs who lose at
the class certification stage, and are consequently unable to share the burdens of litigation with a
larger class, do not pursue individual discrimination claims. 99 One reason is that the cost of
bringing a lawsuit can be much higher than the potential return to individual plaintiffs, resulting
in “negative value” claims. For example, the average settlement in a sex discrimination claim
deemed by the Equal Employment Opportunity Commission (EEOC) to have merit is
$34,200, 100 which is not enough to cover litigation costs and still compensate the plaintiff.
Many individual plaintiffs are also unaware that they have a claim.
In the Wal-Mart case, for example, Wal-Mart strictly prohibits
employees from discussing pay. 101 It also tends to segregate
women and men into different store departments. 102 This keeps
employees ignorant of pervasive pay discrepancies throughout
Wal-Mart’s system. Even if aware they might have a claim,
potential low returns and fear of retaliation keep individuals from
seeking compensation when they have been discriminated against.
Wal-Mart’s threats of retaliation are well-documented. 103
If the Supreme Court
limits access to a class
action in this case, it will
enable Wal-Mart to
essentially rob its women
employees of fair wages
without serious legal
consequences.
Class actions allow plaintiffs to uncover company-wide statistics
that provide a more accurate measure of whether the company is engaged in a pattern of
discrimination or its conduct has a discriminatory effect. The standard of proof in pattern-orpractice and disparate impact cases is also very different than in an individual lawsuit. In the
former, courts look at the overall practices of a company, with plaintiffs carrying the burden of
showing that unlawful discrimination has been the regular procedure or policy, or that while fair
in form, company policy is discriminatory in operation. In the latter, the focus is on the
decisions of management applied to each individual. Statistical evidence is often decisive in
class actions, but may be irrelevant in individual lawsuits. Without it, however, discriminatory
practices that can be seen in a company overview may remain hidden.
B. If the Roberts Court Reverses Class Certification in Dukes, It Could Harm
Enforcement of Civil Rights and Employment Discrimination Laws
If the Supreme Court limits access to a class action in this case, it will enable Wal-Mart to
essentially rob its women employees of fair wages without serious legal consequences. In fiscal
year 2010, Wal-Mart made $14 billion in profits on net sales of $405 billion. 104 Individual sex
discrimination lawsuits – even if hundreds were filed and successful – would not motivate Wal9
Mart to address disparities in pay and promotions between men and women. Far from being a
deterrent, a company as big as Wal-Mart would simply consider isolated awards as the cost of
doing business.
A decision decertifying the Dukes class action would also make it more challenging for other
plaintiffs to bring class actions, depending on the Court’s reasoning. For example, if the Court
finds that the discrepancy in pay and promotion for women at Wal-Mart is not common enough
to support a class action on this record, it will tend to exonerate large companies with lots of
employees, managers, and outlets. A class action pending against Costco, to cite one case, may
turn on the outcome of this case. 105 Other employment discrimination class actions, where the
bar is already high, may also become more difficult. 106 Alternatively, if the Court finds that
Betty Dukes and her class members cannot obtain back pay through the particular type of class
action they have sought to certify, it will cripple one of the most effective remedies that class
actions provide. 107
C. Government Enforcement Cannot Begin to Protect Vulnerable Workers.
Proponents of greater restrictions on class action lawsuits claim that
the suits are unnecessary because government agencies are responsible
In recent years, the
for enforcing workplace discrimination claims. Almost all workplace
Roberts Court has ruled
discrimination claims must first be filed with the EEOC before an
against women in a
employee may sue an employer. This, however, does not mean that
number of landmark
the EEOC can do much about those claims. The EEOC received
cases that further shifted 99,992 workplace discrimination allegations in 2010 but filed only
the balance of power to
271 enforcement actions in response. 108 (By comparison, there are
more than 860,000 women working at Wal-Mart today.) The agency
the side of powerful
understaffed, resulting in a
corporations and against has historically been underfunded and
massive backlog of unresolved cases. 109 As a result, the number of
everyday Americans.
EEOC enforcement actions has decreased every year since 2004
despite the fact that 20,490 more discrimination claims were filed in
110
Even under full staffing and funding, the EEOC would be woefully
2010 than in 2004.
incapable of remedying even a small portion of workplace discrimination claims.
Class actions fill a void left by the inadequacy of individual lawsuits and government
enforcement. The Supreme Court’s acceptance of Wal-Mart’s appeal in Dukes threatens one of
the last remaining tools available to employees to protect themselves from discrimination.
VI.
How Have Other Plaintiffs Alleging Sex Discrimination Fared Before
the Roberts Court?
In recent years, the Roberts Court has ruled against women in a number of landmark cases that
further shifted the balance of power to the side of powerful corporations and against everyday
Americans. 111 By enacting Title VII in 1964, and amending it in 1991, 112 Congress attempted
to close the gap between wages and opportunities available to men and women. Unfortunately,
the activist Roberts Court has weakened those laws by narrowly construing them in ways that
have protected sex discrimination in the workplace.
10
For example, in Ledbetter v. Goodyear Tire & Rubber Co., the plaintiff sued Goodyear after
discovering that she had been paid less than her male counterparts for many years. 113 In a 5-4
decision, the Roberts Court ruled in favor of Goodyear and held that the statute of limitations
barred Ledbetter’s claim. The statute required victims to bring claims within 180 days “after the
alleged unlawful employment practice occurred.” 114 Ledbetter argued that the issuance of a
paycheck with wages that are lower because of illegal sex discrimination should constitute an
unlawful employment practice. The court rejected that argument on the grounds that she was
required to file a claim within 180 days of the initial decision to discriminate against her, which
is typically impossible to pinpoint in the context of wages. 115 Justice Ruth Bader Ginsburg
called the majority opinion “a cramped interpretation of Title VII, incompatible with the statute’s
broad remedial purpose.” 116 Congress overturned the Supreme Court’s ruling by statute in 2009
and President Barack Obama made the Lilly Ledbetter Fair Pay Act the first bill he signed. 117
The Roberts Court also put the brakes on gender equality in the workplace in AT&T v. Hulteen.
In Hulteen, the plaintiff sued AT&T for providing her with a lower pension than she would have
received had the company given her full credit for her time on pregnancy leave. 118 Under
AT&T’s policy, a woman who took time off work while on pregnancy leave could apply a
maximum of 30 days of that leave toward credit for pension calculations. Employees who took
temporary disability leave for non-pregnancy reasons received credit from AT&T for the entire
time they were away. The Pregnancy Discrimination Act, enacted in 1978, prohibited this type
of distinction between benefits. 119 However, AT&T continued to use the now-illegal formula to
deprive women of full pensions for pregnancy leave they took prior to the effective date of the
Act. The Roberts Court ruled in favor of this discriminatory policy.
VII. Conclusion
The evidence in this case, even at the class certification stage, demonstrates that as many as 1.5
million women who work at Wal-Mart have not received the same pay or promotion
opportunities as men for a very long time. The only way for them to receive compensation for
their injuries, and the best way to induce Wal-Mart to change its system of discrimination, is for
the Court to allow Betty Dukes and her fellow plaintiffs to proceed with their class action
lawsuit. Individual lawsuits against such a massive company as Wal-Mart, would not even
register on the company’s bottom line.
The question in this case is whether the Roberts Court will again side with corporate interests, or
buck recent trends and allow Betty Dukes and her fellow employees to proceed.
Oral argument is set for March 29, 2011.
11
Endnotes
1
Wal-Mart v. Dukes, 131 S. Ct. 795 (2010), cert. granted.
Dukes v. Wal-Mart, 603 F.3d 571, 577 (9th Cir. 2010).
3
The Supreme Court often agrees to hear an appeal because circuit courts have split on the proper interpretation of a
given law. Here, Wal-Mart claims that a circuit split exists concerning whether plaintiffs seeking any type of money
damages may obtain class certification under Rule 23(b)(2) of the Federal Rules of Civil Procedure. Every circuit
court that has ruled on this issue has held that class actions may be certified when plaintiffs seek back pay and either
injunctive or declaratory relief, as is the case in Wal-Mart. See Reeb v. Ohio Dep’t of Rehab. & Corr., 435 F.3d
639, 650 (6th Cir. 2006); Cooper v. S. Co., 390 F.3d 695, 720 (11th Cir. 2004), overrruled on other grounds, Ash v.
Tyson Foods, Inc., 546 U.S. 454, 457 (2006) (per curiam); Robinson v. Metro-North Commuter R.R. Co., 267 F.3d
147, 169-170 (2d Cir. 2001); Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894, 896 (7th Cir. 1999); Allison v. Citgo
Petroleum Corp., 151 F.3d 402, 415-16 (5th Cir. 1998); Kirby v. Colony Furniture Co., 613 F.2d 696, 699-700
(8th Cir. 1980); Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211, 257-58 (5th Cir. 1974); Robinson v. Lorillard
Corp., 444 F.2d 791, 802 (4th Cir. 1971).
4
See Alliance for Justice, Unprecedented Injustice (2010), available at http://www.afj.org/judicialselection/unprecedented-injustice.pdf.
5
Adam Liptak, Justices Offer Receptive Ear to Business Interests, N.Y. TIMES, Dec. 18, 2010, available at
http://www.nytimes.com/2010/12/19/us/19roberts.html
6
Id. The United States Chamber of Commerce often files amicus briefs in support of corporations that are litigating
in opposition to discrimination laws, whistleblower protections, or reasonable health and safety regulations.
7
Just a few of the corporate interests that filed amicus briefs in support of Wal-Mart include Altria, Bank of
America, Cigna, Dupont, UPS, and Costco. For the full list, see American Bar Association, Briefs: March Cases
2010 - 2011 Term,
http://www.americanbar.org/publications/preview_home/publiced_preview_briefs_march2011.html (last visited
March 10, 2011).
8
U.S. Census Bureau, Historical Income Tables – People, Table P-40, available at
http://www.census.gov/hhes/www/income/data/historical/people/P40_2009.xls.
9
Id.
10
National Committee on Pay Equity, The Wage Gap Over Time: In Real Dollars, Women See a Continuing Gap,
http://www.pay-equity.org/info-time.html (last visited Mar. 9, 2011).
11
Women comprise nearly half of the employed workforce in the United States but experience higher rates of
poverty and earn less than men. UNITED STATES DEPARTMENT OF COMMERCE AND EXECUTIVE OFFICE OF THE
PRESIDENT OFFICE OF MANAGEMENT AND BUDGET, WOMEN IN AMERICA: INDICATORS OF SOCIAL AND ECONOMIC
WELL-BEING 6 (March, 2011), available at
http://www.whitehouse.gov/sites/default/files/rss_viewer/Women_in_America.pdf. Female-headed households
have the lowest family earnings among all family types, which creates great hardships because more adults live in
family households headed by unmarried women than headed by unmarried men. Id. at 6, 13. If women received the
same pay as their male counterparts, poverty rates among their families would fall by more than 50%. AFL-CIO &
INST. FOR WOMEN’S POL’Y RES., EQUAL PAY FOR WORKING FAMILIES: NATIONAL AND STATE DATA ON THE PAY
GAP AND ITS COSTS at 14 (1999).
2
Wal-Mart’s expensive and inadequate health care plans exacerbate the problem by forcing employees to spend
almost twice the percentage of their income on health care for themselves and their families as other workers spend
and by pushing many to seek public assistance through Medicaid and SCHIP. Wal-Mart Stores, Inc., Supplemental
Benefits Documentation, Board of Directors Retreat FY06 at 7 (2005), available at
http://www.nytimes.com/packages/pdf/business/26walmart.pdf. Inadequate health care for Wal-Mart employees
costs taxpayers $658 million for these public insurance programs and for reimbursements to health care providers
who treat the uninsured. ARINDRAJIT DUBE, ET AL., INTERNAL WAL-MART MEMO VALIDATES FINDINGS OF UC
BERKELEY STUDY at 1 (Oct. 26, 2005), available at http://laborcenter.berkeley.edu/retail/walmartmemo.pdf. If
women earned the same pay as men, poverty would be reduced by 50%.
12
WAL-MART STORES, INC., CORPORATE FACTS: WALMART BY THE NUMBERS at 1, available at
http://walmartstores.com/download/2230.pdf.
13
According to Wal-Mart’s 2009 report on workforce diversity, 35 percent of Wal-Mart’s workforce is minority.
WAL-MART, 2009 WORKFORCE DIVERSITY at 3 (2009), available at http://walmartstores.com/download/4394.pdf.
12
14
See Eric Lipton, Billionaire Brothers’ Money Plays Role in Wisconsin Dispute, N.Y. TIMES, Feb. 21, 2011,
available at http://www.nytimes.com/2011/02/22/us/22koch.html?pagewanted=1&_r=1&sq=Koch&st=cse&scp=2
(“State records also show that Koch Industries, their energy and consumer products conglomerate based in Wichita,
Kan., was one of the biggest contributors to the election campaign of Gov. Scott Walker of Wisconsin, a Republican
who has championed the proposed cuts (to public-sector union benefits).”). David Lightman, Tidal wave of outside
money swamping 2010 elections, MCCLATCHY NEWSPAPERS, Oct. 4, 2010, available at
http://www.mcclatchydc.com/2010/10/04/101589/tidal-wave-of-outside-money-swamping.html (discussing the
large increase in spending by corporations during the 2010 elections as a result of the Supreme Court’s decision in
Citizens United; “‘Now, if you're a company that wants to write a $10 million check to help or hurt a candidate, you
can go to town,’ said Dave Levinthal, a spokesman for the Center for Responsive Politics.”).
15
Paul Elias, Betty Dukes, Wal-Mart Greeter, Leads Class Action Suit, THE HUFFINGTON POST, May 1, 2010,
available at
http://www.huffingtonpost.com/2010/05/01/betty-dukes-walmart-greet_n_559892.html.
16
Id.
17
Id.
18
Monee Fields-White, She’s Taking on Walmart, THE ROOT, June 24, 2010, available at
http://www.theroot.com/views/shes-taking-walmart?page=0,1.
19
Id.
20
Id.
21
Declaration of Betty Dukes in Support of Plaintiffs’ Motion for Class Certification ¶ 20, Dukes v. Wal-Mart, 222
F.R.D. 137 (N.D. Ca. 2004).
22
Nico Hines, US discrimination case between Betty Dukes and Wal-Mart reaches Supreme Court, THE TIMES, May
5, 2010, available at http://www.timesonline.co.uk/tol/news/world/us_and_americas/article7116313.ece.
23
Fields-White, supra note 18; Declaration of Edith Arana in Support of Plaintiffs’ Motion for Class Certification at
para. 5, Dukes, 222 F.R.D. 137.
24
Id. at ¶¶ 14, 24.
25
Fields-White, supra note 18.
26
Arana Decl., supra note 23, at ¶¶ 15-17.
27
Fields-White, supra note 18.
28
Arana Decl., supra note 23, at ¶ 27.
29
Id. at ¶¶ 22, 29.
30
Fields-White, supra note 18.
31
R. Harper Dep. 103:21-105; 135:13-136:14, Ex. 36, Dukes, 222 F.R.D. 137.
32
Swanson Dep. 134:15-135:6, Ex. 14, Dukes, 222 F.R.D. 137.
33
Haworth Dep. 217:7-18, Ex. 126. Dukes, 222 F.R.D. 137.
34
Haworth Dep. 215:12-218:9, Dukes, 222 F.R.D. 137. R. Harper Dep. 105:12-106:18, Dukes, 222 F.R.D. 137.
35
Brown Decl. ¶¶ 2-5, Dukes, 222 F.R.D. 137.
36
Kwapnowski Decl. ¶ 16, Dukes, 222 F.R.D. 137.
37
Id. at ¶ 12.
38
Tallet Decl. ¶ 10, Dukes, 222 F.R.D. 137. Young Decl. ¶ 10, Dukes, 222 F.R.D. 137. Scott Decl. ¶ 8, Dukes, 222
F.R.D. 137. Odle Decl. ¶¶ 8, 10-11, Dukes, 222 F.R.D. 137.
39
McDonald Decl. ¶ 7, Dukes, 222 F.R.D. 137.
40
Pls. Third Am. Compl. ¶ 52, Dukes, 222 F.R.D. 137.
41
S. Hall Decl. ¶ 2, Dukes, 222 F.R.D. 137.
42
Collier Decl. ¶ 9, Dukes, 222 F.R.D. 137.
43
McKenna Decl. ¶ 4, Dukes, 222 F.R.D. 137.
44
Deno Dep. 151:22-153:10, 209:1-211:14, Ex. 69, Dukes, 222 F.R.D. 137.
45
Jaso Decl. ¶ 10, Dukes, 222 F.R.D. 137.
46
Mott Decl. ¶ 17, Dukes, 222 F.R.D. 137.
47
Walmartstores.com, Stores Training & Development, http://walmartstores.com/careers/7740.aspx (last visited
Mar. 9, 2011).
48
Brief for Respondents at RA 44, Wal-Mart, No. 10-277 (Feb. 2, 2011).
49
Walton Institute meetings, Ex. 89, Dukes, 222 F.R.D. 137.
50
Schindt Dep. 57:14-61, Ex. 38, Dukes, 222 F.R.D. 137. R. Harper Dep. 116:10-24, Ex. 36, Dukes, 222 F.R.D.
137.
13
51
Reza Dep. 98:17-25, 99:22-100:13, 100:23-101:2 Ex. 39, Dukes, 222 F.R.D. 137. Schindt Dep. 59:12-18, Ex. 38,
Dukes, 222 F.R.D. 137. R. Harper Dep. 116:10-117:16, 116:21-24, Ex. 36, Dukes, 222 F.R.D. 137. Reeves II Dep.
144:23-145:14, Ex. 33, Dukes, 222 F.R.D. 137.
52
R. Harper Dep. 125:21-126:3, Ex. 36, Dukes, 222 F.R.D. 137.
53
The following is a description of a Wal-Mart work trip that female employees were required to take with their
male co-workers: “I was the only woman in my car… During the approximately 16-hour drive, the male managers
talked ceaselessly about sex despite my repeated requests that they stop. We stopped for gas and several of the male
managers wanted to go for a drink at the club adjacent to the station. When we entered, I realized that it was a strip
club. Although I…had no interest in being there, I had no choice but to stay because I did not have my own car. I did
not believe that it would have been safe for me to sit in the parking lot in the dark outside the club. I tried to ignore
the show, but at one point, I was approached by one of the strippers and District Manager Kevin [W.] proposed that
he pay one of the strippers $50 to have a ‘threesome out back’ with me.’…On the return trip to Indiana, we stopped
at two more strip clubs… The other female manager…and I sat in the back of the club as far away from the stage as
possible, while several of the men sat up close and paid for lap dances... When we returned to the motel where we
were to spend the night, District Manager [W.] and at least one other store manager dropped us off and announced
that they were going to a massage parlor, which I understood to mean that they were planning to hire prostitutes.”
Howard Decl. ¶ 14, 17-19, Dukes, 222 F.R.D. 137.
54
Peterson Dep. 264:11-16, Ex. 16, Dukes, 222 F.R.D. 137.
55
Harper I Dep. 215:3-4, Ex. 1, Dukes, 222 F.R.D. 137. Sam’s Club Organizational Charts, Ex. 71 WMHO157785,
Dukes, 222 F.R.D. 137.
56
Harper I Dep. 141:20-21, Ex. 1, Dukes, 222 F.R.D. 137. Butler Dep. 39:14-18, Ex. 4, Dukes, 222 F.R.D. 137.
57
Pls. Third Am. Compl. ¶ 20, Dukes, 222 F.R.D. 137.
58
Id. at ¶ 13.
59
Drogin Decl. ¶ 76, Dukes, 222 F.R.D. 137.
60
Id. at ¶ 67.
61
Id. at ¶ 28, Table 12; ¶ 30, Table 13.
62
Id. at ¶ 29.
63
Id. at ¶ 18, Table 3; ¶ 21; ¶ 23, Table 7; ¶ 25, Table 9; ¶ 26, Table 10. Swanson Dep. 61:9-14; 62:24-63:1, Ex. 14,
Dukes, 222 F.R.D. 137. RICHARD DROGIN, STATISTICAL ANALYSIS OF GENDER PATTERNS IN WAL-MART
WORKFORCE 17, Table 9 (Feb. 2003), available at http://www.walmartclass.com/staticdata/reports/r2.pdf.
64
The two hourly position percentages are estimates. Women make up 67 percent of Wal-Mart’s hourly staff, and
Sales Associate and Cashier are two of the most common hourly positions. Drogin Decl. at ¶ 18, Table 3; ¶ 23,
Table 7; ¶ 25, Table 9; ¶ 26, Table 10.
65
See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 339 (1977) (“[O]ur cases make it unmistakably clear
that statistical analyses have served and will continue to serve an important role in cases in which the existence of
discrimination is a disputed issue…We have repeatedly approved the use of statistical proof, where it reached
proportions comparable to those in this case, to establish a prima facie case of racial discrimination in jury selection
cases.”)
66
Dukes, 222 F.R.D. at 148.
67
Id. at 149.
68
See id. at n. 20 (“The company’s principal response to this evidence is that statistics can never in and of
themselves prove the existence of a pattern or practice of discrimination, or even establish a prima facie case shifting
to the employer the burden of rebutting the inference raised by the figures. But as even our brief summary of the
evidence shows, this was not a case in which the Government relied on ‘statistics alone.’ The individuals who
testified about their personal experiences with the company brought the cold numbers convincingly to life.”)
69
Bentonville '99 People Strategic Planning Session, Ex. 111, Dukes, 222 F.R.D. 137.
70
Pls. Third Am. Compl. ¶ 28, Dukes, 222 F.R.D. 137.
71
Bendick Decl. ¶ 31, Dukes, 222 F.R.D. 137.
72
Id. at ¶ 32.
73
42 U.S.C. § 2000e(a)(2).
74
FED. R. CIV. P. 23(a).
75
Id. at 23(b)(2).
76
Brief for Petitioner at 8, Wal-Mart v. Dukes, No. 10-277 (U.S. Jan. 20, 2011).
77
Dukes, 222 F.R.D. at 143.
78
Dukes, 603 F.3d at 577.
14
79
Id.
In its brief to the Supreme Court, Wal-Mart quotes the Ninth Circuit dissent’s description of the class as
“gargantuan,” implying that a larger class makes certification less appropriate. Id. at 9.
81
Brief for Petitioner at 11, Wal-Mart, No. 10-277.
82
“Wal-Mart has been recognized by social scientists and management scholars as an organization with a strong
corporate culture.” Plaintiffs’ Motion for Class Certification and Memorandum of Points and Authorities, Dukes,
222 F.R.D. 137 (citing Bielby Decl. ¶ 18).
83
DON SODERQUIST, THE WAL-MART WAY 33 (Nelson Books 2005).
84
Id.
85
For example, the company regularly moves managers to far-flung locations at a moment’s notice. Each employee
who becomes a store manager is subsequently transferred an average of 3.6 times. A majority of transfers are
between districts and many are between regions. Dukes, 222 F.R.D. at 152.
86
Ex. 87 at 217-218, Dukes, 222 F.R.D. 137.
87
Hass Dep. 15:21-16:3, Ex. 27, Dukes, 222 F.R.D. 137.
88
Harper I Dep. 32:14-40:12, 45:25-46:7, 58:18-59:9, Ex. 1, Dukes, 222 F.R.D. at 152. Burner Dep. 144:16-145:12,
148:24-149:13, Ex. 5, Dukes, 222 F.R.D. 137. Reeves I Dep. 72:1-16, Ex. 2, Dukes, 222 F.R.D. 137. Winkler Dep.
172:7-15, Ex. 73, Dukes, 222 F.R.D. 137. Ruiz Dep. 130:22-25-131:1-3, Ex. 8, Dukes, 222 F.R.D. 137. Job
Descriptions, Ex. 74, Dukes, 222 F.R.D. 137.
89
Fielek Dep. at 8:10-13, 13:21-24, 14:10-22, Ex. 19, Dukes, 222 F.R.D. 137. Annatone Dep. at 127:24-128:5,
132:19-133:9, Ex. 20, Dukes, 222 F.R.D. 137.
90
Tang Dep. at 39:22-40:4, Ex. 24, Dukes, 222 F.R.D. 137. R. Carter Dep. at 158:16-159:3, Ex. 78, Dukes, 222
F.R.D. 137. Heilman Dep. at 196:7-20, Ex. 25, Dukes, 222 F.R.D. 137. Mireles Dep. at 24:1-9, Ex. 26, Dukes, 222
F.R.D. 137.
91
Human Rights Watch, an organization typically dedicated to highlighting rights violations by some of the world’s
most repressive regimes, issued a report in 2007 condemning Wal-Mart’s anti-union policies. Steven Greenhouse,
Report Assails Wal-Mart Over Unions, N.Y. TIMES, May 1, 2007, available at
http://www.nytimes.com/2007/05/01/business/01labor.html According to the report, all managers are required to
call the company’s anti-union hotline at the Home Office if workers attempt to unionize. The Home Office then
responds immediately by sending a labor relations team “to squash the organizing effort.” Human Rights Watch,
US: Wal-Mart Denies Workers Basic Rights, Apr. 30, 2007, http://www.hrw.org/en/news/2007/04/30/us-wal-martdenies-workers-basic-rights (last visited Mar. 10, 2011).
92
Steven Greenhouse, Report Warned Wal-Mart of Risks Before Bias Suit, N.Y. TIMES, June 3, 2010, available at
http://www.nytimes.com/2010/06/04/business/04lawsuit.html.
93
Id.
94
Id.
95
Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990-91 (1988).
96
Tristin Green, Insular Individualism: Employment Discrimination Law after Ledbetter v. Goodyear, 43 HARV.
C.R.-C.L. L. REV. 353, 380 (2008).
97
CENTER FOR JUSTICE & DEMOCRACY, THE TRUTH ABOUT CLASS ACTION LAWSUITS 1 (January 2007), available at
http://www.centerjd.org/archives/issues-facts/MB_2007classaction.pdf.
98
Amchem Prods. v. Windsor, 521 U.S. 591, 617 (1997) (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344
(7th Cir. 1997)).
99
Melissa Hart, Will Employment Discrimination Class Actions Survive?, 37 AKRON L. REV. 813, 842 (2004)
100
Bill Mears, Wal-Mart gender-bias suit headed to high court, CNN MONEY, Dec. 6, 2010,
http://money.cnn.com/2010/12/06/news/companies/Wal-mart-lawsuit-to-Supreme-Court/index.htm
101
Brief Amici Curie of the American Civil Liberties Union and National Women’s Law Center et al. in Support of
Respondents at 26, Wal-Mart, No. 10-277 (Mar. 1, 2011).
102
Id. at 22.
103
When a group of female Wal-Mart employees used the company’s “open door” policy to inform management of
sexism and racism in job assignments, an individual from personnel who worked in the Home Office responded with
the following: “Don’t bother using your quarter to call us. I can fire you, without taking any steps, for using the open
door.” An employee who knew about the reply stated that it made her “reluctant to use the ‘open door’ policy
because of the fear of retaliation” and that it confirmed for her that “Wal-Mart was not concerned about
discrimination in its stores.” Jones Decl. 973-74 ¶ 8, Dukes, 222 F.R.D. 137.
80
15
104
Neil Carvin, Wal-Mart: Looking Ahead to January 2011 Quarterly Results, Seeking Alpha, Jan. 23, 2011,
http://seekingalpha.com/article/247973-wal-mart-looking-ahead-to-january-2011-quarterly-results, U.S. SECURITIES
AND EXCHANGE COMMMISSION, FIVE-YEAR FINANCIAL SUMMARY: WAL-MART STORES, INC., available at
http://www.sec.gov/Archives/edgar/data/104169/000119312510071652/dex13.htm.
105
Dan Levine, Analysis: Wal-Mart court order freezes class actions, REUTERS, Dec. 8, 2010, available at
http://www.reuters.com/article/2010/12/08/us-walmart-classaction-idUSTRE6B75XB20101208.
106
Brief Amici Curie of National Employement Lawyers Association et al. in Support of Respondents at 37-38,
Appendix 2, Wal-Mart, No. 10-277 (Between 2008 and 2010, class certification was denied in three-fourths of all
employment discrimination cases in which the plaintiffs sought certification.)
107
One of the issues in the case is whether claims for “monetary relief” predominate over injunctive and declaratory
relief. Wal-Mart argues that they do because so many of the class members no longer work for Wal-Mart and could
not be benefitted by an injunction. Brief for Petitioner at 50-52, Wal-Mart v. Dukes, No. 10-277. Wal-Mart also
argues that back-pay awards should be considered monetary in this case, or otherwise be unavailable under Rule
23(b)(2). Id. at 53-55. Plaintiffs respond by arguing that Rule 23(b)(2) class certifications are not limited only to
injunctive and declaratory relief. Brief for Respondents at 48-55, Wal-Mart, No. 10-277. Plaintiffs also point out
that circuit courts concur that back pay may be awarded under Rule 23(b)(2) class actions, in large part because back
pay awards are considered equitable remedies, not damages. Id. at 55-60. Plaintiffs rebut Wal-Mart’s claim about
former employees by noting that they could also benefit from an elimination of sex discrimination at Wal-Mart, as
they then might return to work for the company. Plaintiffs add that given the length of time it takes to certify a
class, and the turnover in the retail industry, it would be a perverse result if these factors caused this long-delayed
class action to be decertified. Id. at 61-64.
108
U.S. Equal Opportunity Employment Commission, Charge Statistics FY 1997 Through FY 2010,
http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm (last visited Mar. 10, 2011); U.S. Equal Opportunity
Employment Commission, EEOC Litigation Statistics FY 1997 through FY 2010,
http://www.eeoc.gov/eeoc/statistics/enforcement/litigation.cfm (last visited Mar. 10, 2011).
109
Steve Vogel, EEOC Struggles With Huge Workload, Diminished Staff, L.A. TIMES, Feb. 2, 2009, available at
http://www.washingtonpost.com/wp-dyn/content/article/2009/02/02/AR2009020202452.html
110
Litigation Statistics, supra note 108.
111
Alliance for Justice, supra note 2.
112
42 U.S.C. § 2000e et seq.
113
Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 621-22 (2007)
114
42 U.S.C. § 2000e–5(e)(1).
115
Ledbetter, 550 U.S. at 621.
116
Id. at 661.
117
Sheryl Gay Stolberg, Obama Signs Equal-Pay Legislation, N.Y. TIMES, Jan. 29, 2009, available at
http://www.nytimes.com/2009/01/30/us/politics/30ledbetter-web.html
118
AT&T v. Hulteen, 129 S. Ct. 1962, 1967 (2009).
119
42 U.S.C. § 2000e(k).
16