Wednesday, June 29, 2011

Senate Judiciary Committee holds hearing on Wal-Mart v. Dukes and other recent SCOTUS decisions

            The Senate Judiciary Committee (Senator Patrick Leahy, Chair) held a hearing this morning on “Barriers to Justice and Accountability: How the Supreme Court’s Recent Rulings Will Affect Corporate Behavior.  A webcast of the hearing as well as the witnesses’ prepared statements are found on Senator Leahy’s web site at

            Summarizing several recent SCOTUS decisions, Senator Leahy remarked that the Supreme Court’s recent decisions makes one wonder whether some corporations are “too big to be held accountable.”  A portion of his prepared statement provides: "American consumers and employees rely on the law to protect them from fraud and discrimination. They rely on the courts to enforce those laws intended to protect them. Unfortunately, these protections are being eroded by what appears to be the most business-friendly Supreme Court in the last 75 years.  Last week, in Wal-Mart v. Dukes, five men on the Supreme Court disqualified the claims of 1.5 million women who had spent nearly a decade seeking justice for sex discrimination by their employer, Wal-Mart. . . . Earlier this month, in Janus Capital v. First Derivative Traders, the same five justices gave corporations another victory by shielding them from accountability even when they knowingly lie to their investors.  . . Two months ago, in AT&T v. Concepcion, the Supreme Court, in another 5-4 opinion, held that companies can take advantage of the fine print on telephone bills and other contracts to bar customers from bringing class action lawsuits."

             Betty Dukes, lead plaintiff, testified:  "After 17 years of working in the same place, I have encountered and seen many disparities and many ways in which women have been treated differently than men. . . .  Because I was aware that the disparities in treatment that I saw affected many more women than just me, I decided to bring this lawsuit. I filed this class action lawsuit in June 2001. Through the lawsuit, we have found a lot of evidence that Wal-Mart managers and executives have viewed women as less valuable workers than men. Managers at stores around the country, for example, have openly explained they were paying men more than women because they believe men have families to support while women do not. Managers have also justified their preference for selecting men for management jobs by telling women that men make better managers in retail work and that women should stay home with their families.  In fact, when another of the plaintiffs who worked at a different store found out a male co-worker in the same position was making $10,000 a year more, she was told to bring in her household budget so her manager could decide whether she deserved to receive as much pay as the co-worker. Even then her salary remained far below his."

             Andrew Pincus, a partner at Mayer Brown LLP, testified that a review of recent decisions indicated that private plaintiffs and businesses have had an equal win-loss record in the Supreme Court.  Further, Mr. Pincus stated, the plaintiffs’ positions in the cases that were lost in the Supreme Court “departed very substantially from existing law.”  Finally, Mr. Pincus urged the Committee not to listen to any dire warnings about the impact of the recent SCOTUS decisions because those predictions are “highly likely to be incorrect.”  As an example, Mr. Pincus cited the predictions of reduced access to justice following Ashcroft v. Iqbal, which the recent study by the Federal Judicial Center had “proven wrong.”

             (As an aside, one of my next postings will be a critique of that Federal Judicial Center study.  Stay tuned.)

             Professor Melissa Hart (U. Colo. School of Law) testified: "What is clear is that in the future every employment discrimination class action will be evaluated in light of the current Court‘s hostility to class litigation. The decision will thus have a significant chilling effect on the collective adjudication of civil rights claims that has been an essential aspect of full enforcement of the law.  Moreover, by making class action employment challenges significantly harder to pursue, the Court‘s decision takes pressure off of employers to monitor their own employment practices. Laws prohibiting discrimination are only as effective as the means available to enforce those laws. If systemic discrimination claims of the sort presented in Wal-Mart are no longer permitted, employers’ incentives to adopt strong internal systems for preventing discriminatory decisionmaking are considerably diminished. One of the important successes of the Wal-Mart case itself is instructive: in the years since the suit was first filed, Wal-Mart has changed many of the practices that the plaintiffs pointed to as causes of gender disparities at the company."

             Two other witnesses also testified, one in support of Senator Leahy’s thesis (James Fox, Duke School of Law, ) and one against (Robert Alt, The Heritage Foundation, 

            In questions following the prepared statements, Senator Leahy asked Ms. Dukes what united her and other women employees at Wal-Mart.  She answered:

 "Wal-Mart is a vast corporation. . . We work in an environment that is very unfair in its treatment of its employees.  . . . We are trying to unite without having to be under the intimidation of losing your job just because you speak out.  We are in a very intimidating environment.  So this avenue was one that would have allowed us, without the fear of retribution, to come forth and have our complaints addressed." 

            “Are you going to give up now?” Senator Leahy asked.  “Absolutely not.  The best is yet to come,” replied Ms. Dukes. 


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