NCRCR Interview Series: Dukes v. Wal-Mart Stores, Inc.

Welcome to the National Campaign to Restore Civil Rights Interview series, a regular examination of the court cases that shape and affect our lives.

Despite the common perception that we have achieved gender equality in the workplace, there are still many examples of where women are not treated the same as their male counterparts. Alleging gender discrimination in pay and promotions, hundreds of thousands of women have sued the largest corporation in the United States: Wal-Mart. This case is currently pending in the Supreme Court as Dukes v. Wal-Mart Stores Inc., the largest class action civil rights lawsuit ever filed.

To learn more about this case, we spoke with Jenny Yang, partner at Cohen Milstein.

PERRY: What is the Dukes v. Wal-Mart Stores case about?

YANG: Betty Dukes and the other women who have brought this case were denied equal pay to men. They watched and they were repeatedly denied promotions given to less qualified men, and they realized these weren’t isolated occurrences, but that at Wal-Mart there was widespread discrimination against women and that that was the norm. The data that we studied shows that across the company, women earn less than men in every major job position at Wal-Mart, despite their better performance scores and greater seniority. Their annual earnings are less than men’s in every one of the regions that Wal-Mart operates. So in order to certify a class action, which is what the women have brought here, they have come forward with declarations, testifying to similar experiences, managers told them, “You know, this man was paid more than you because he has a family to support.” Or, “This guy was given a promotion because you don’t hunt or fish and do all the other things that we all do.” And Wal-Mart in fact has a training institute, where an answer that they approved to the ‘frequently-asked question’ of why aren’t there more women in management was, “Well, men are more aggressive in seeking promotions.” And that’s the kind of stereotyped thinking and actions that pervaded the company.

 In order to show the common practices, women across the country came forward to tell their stories. For example, one female employee who had been with Wal-Mart for five years and had a master’s degree asked her department manager why her pay was less than that of a just-hired seventeen-year-old guy, and the manager said, “Well, you don’t have the right equipment. You aren’t male, so you can’t expect to be paid the same.” Another manager told one of our named plaintiffs, Chris Kwapnowski, that he had given a male associate a larger raise because the male had a family to support, and that was sort of a common theme heard throughout the company. Another male departmenter told a woman that, “Male employees will always make more than female employees, because God made Adam first, so women would always be second to men.” And you know, during another job interview, another woman was told, “Well, this is a man’s world, men control managerial positions at Wal-Mart.” Just sort of matter-of-fact, like that was something everybody would understand. Another male support manager responded to a female employee’s request for a transfer to hardware by asking, you know, “You’re a girl. Why do you want to be in hardware?” And we saw those patterns throughout the company in terms of gender segregation in different departments. This case is trying to challenge that on a class-wide basis throughout the country.

PERRY: What is the issue that the Supreme Court will have to decide in this case?

YANG: The issue before the Court is essentially whether this class certification was proper. The district court in the northern district of California certified a class that includes women across the country, the Ninth Circuit court of appeals approved of that decision. Wal-Mart petitioned the Supreme Court for review, and Wal-Mart argues that there’s no common bond between the women in this case in the decisions that were made, and therefore it’s not appropriate for class certification. The women’s position is that the women are challenging a common pay practice that operates throughout Wal-Mart stores, they are identically operated and all are required to follow this same pay and promotion practice, which essentially provides no standards to the managers on how to make pay decisions or promotion decisions, and does not monitor them. So managers, who are mostly male, are left to make the decisions based on their own preferences, and that results in discrimination against women, where women are at every level paid less than men and given fewer opportunities for promotion. So the Court will have to decide, are the issues presented sufficiently common to permit a class action, that’s one question. The second question the Court will need to address is whether it’s appropriate for the plaintiffs to recover back pay as part of a ‘(b)(2)’ class under the Federal Rules of Civil Procedure 23(b)(2). Historically, civil rights cases have always been viewed as sort of the quintessential Rule 23(b)(2) case, which is designed to permit pursuit of broad injunctive relief that will apply to the class. In addition, courts allow the pursuit of monetary relief as part of those claims, as long as the monetary relief does not predominate. Here, because of the importance of the injunctive relief to the women in the case, and the importance that changing Wal-Mart’s practices could have nationwide, we believe it’s appropriate to include the back pay, because it is not the predominant relief sought here, and courts across the country have consistently allowed back pay in a 23(b)(2) class. So that is another issue that the Court will have to consider here.

PERRY: How will this potentially affect the ability of everyday people to go to court and sue for wage and/or promotion discrimination?

YANG: Well, Wal-Mart is taking a very aggressive approach in this case and trying to get the Court to change years of settled law to make it more difficult for people to come together and bring class actions. It’s very hard for individual workers to take on big companies like Wal-Mart alone, it’s expensive to litigate, and in cases like this where you’re talking about pay disparities which on average are $1,100 per year per person, the individual recoveries, while important to each of the workers, will not usually be large enough to justify the risk and cost of litigation. And also employees often fear retaliation if they complain, so class actions provide them with a way to band together, not single out particular people in order to participate and actually challenge and change practices. So if the Court decides, sets a much higher threshold for when people can bring class actions, it can effectively insulate companies from liability for widespread discrimination, because individuals will not be able to challenge it on an individual basis.  

PERRY: What potential impact will this case have on people's ability to use class action lawsuits to sue for alleged wrongdoing or to enforce their rights, regardless of the issue?

YANG: This case could have far-reaching impact in a wide variety of cases in addition to the employment arena. Consumers often use class actions to protect their rights, where a company might be overcharging them, or misrepresenting information but the actual recovery, again, is too low to afford people to pursue these kinds of challenges individually. Often in cases like this and in other cases, the proof will often be highly statistical, where you’ll be looking at statistical disparities in pay, and that kind of analysis is very cost intensive. So often in order to prove some complicated schemes or violations of the law, it will require a significant amount of resources to do that. So by making it that much harder to certify classes, it could keep a lot of people from vindicating all kinds of statutory rights and claims on a collective basis, which is really the point of the class action statute, that people with similar interests and similar claims could band together and pool their resources to challenge them. Otherwise, many practices that are in fact illegal will never be challenged, because individuals will not have the incentive or the ability to do it, and government agencies are not sufficiently funded or always in a position to know about all these problems.

PERRY: What impact do you expect this case may have?

YANG: I think the impact of this case could potentially be very significant. If the Court restricts access to class actions it can really bar the effective enforcement of civil rights and other employment discrimination laws. Often Courts have not allowed individuals to obtain the kind of broad, systemic relief that the women are seeking in this action. They are trying to get Wal-Mart to change its pay and promotion practices and provide real equal opportunity. And without a class action, individuals will typically not be able to get that kind of relief. Many of the challenges that Wal-Mart brings here to the kind of proof that can be used, whether damages can be calculated in a sort of aggregate, formulaic way, which we believe is appropriate based on the evidence here, those same arguments could be used to try to preclude the federal government from bringing similar pattern or practice enforcement cases. And the theories that we rely on are very much the same theories that the government relies on in challenging patterns of discrimination. So there is a risk that if the Court decides to roll back civil rights protections in this case, it will not only affect the ability of individuals to privately enforce the civil rights laws but it can also tie the hands of government as well.

PERRY: Thank you so much for speaking with us today!

YANG: It was my pleasure. Thank you very much for having me!

That was Jenny Yang, Partner at Cohen Milstein.


The National Campaign to Restore Civil Rights is a collection of more than 100 civil rights organizations and numerous individuals who came together to ensure the courts protect and ensure justice, fairness and opportunity for everyone. The campaign focuses on public education and outreach, finding ways to get the message out about the impact of court rulings on our communities, our opportunities and our rights.


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