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On the First Anniversary of Wal-Mart v. Dukes: Stand Up or Be Trampled

Deborah J. Vagins,
ACLU Washington Legislative Office
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June 20, 2012

Image above: Betty Dukes with Senator Al Franken. The author, Deborah Vagins, to the immediate right, joined by coalition partners.

Over a decade ago, I had the great honor to be part of a team representing Betty Dukes, an employee at Wal-Mart who had received unfair treatment at her job and had decided to do something about it. Betty soon became the face of a large class of women who worked at Wal-Mart and faced similar types of discrimination in the workplace. These women banded together, from all across the country, to take on sex discrimination at one of the world’s largest employers—and through it all, Betty Dukes remained at the forefront fighting for justice. “In this life,” said Betty, “you have to stand up or be trampled.” The ACLU co-authored a brief before the Supreme Court, joined by a large number of civil rights groups, highlighting the gender stereotypes that the women were banding together to challenge.

One year ago today, the Supreme Court’s decision in Wal-Mart v. Dukes prohibited the women of Wal-Mart from joining together to fight discrimination in a single lawsuit. The decision put in place stringent new standards for bringing class action employment discrimination claims—essentially undermining decades of settled law and ensuring that many of those claims against large employers will be “disqualified at the starting gate,” as Justice Ginsberg put it in her dissenting opinion. The Wal-Mart decision showcased yet another of the Supreme Court’s recent efforts to take away important tools needed to put a stop to discrimination in the workplace.

Just as we fought for—and won—legislative reform to restore the law after the Court’s harmful holding in cases like Ledbetter v. Goodyear Tire and Rubber Co., the ACLU, along with Betty, our coalition partners, and champions on Capitol Hill, are working to roll back the negative impact of Wal-Mart v. Dukes for workers across America.

Today, on the one year anniversary of the Supreme Court’s decision in that case, Sen. Al Franken and Rep. Rosa DeLauro have stood up to this injustice with Betty and introduced the Equal Employment Opportunity Restoration Act — a bill that would restore workers’ ability to effectively bring discrimination claims as a group and would reverse the damaging precedent established by the Wal-Mart majority. For the women of Wal-Mart who were denied the opportunity to move forward with their pay discrimination case, and for all American workers who lost an important tool to combat employer discrimination on that day last June, this bill introduction represents an important step in the right direction.

Specifically, the Equal Employment Opportunity Restoration Act would:

• provide an alternative mechanism for workers to join together to enforce their rights to a discrimination-free workplace;
• clarify that workers can challenge the unfettered discretion of supervisors in their subjective decision-making to the same extent as other employment practices;
• ensure that an employers’ written nondiscrimination policies are only relevant in determining if a group action can move forward when the policies have been consistently and effectively implemented; and
• restore courts’ discretion to determine the correct method for assessing how victims of discrimination should be made whole.

Workers deserve the opportunity to effectively combat discrimination in the workplace, and class actions have long been the most effective means of enforcing our anti-discrimination laws.

Without the ability to join together, individual workers who seek to combat discrimination:

• lack safety in numbers and are more vulnerable to retaliation from their employers;
• have greater difficulty getting legal representation, because many lawyers are unwilling or unable to take on individual cases;
• often lack the financial resources to proceed with an individual case, because individual plaintiffs often have to pay significant upfront legal fees in order to proceed;
• are most likely only able to remedy the discrimination that has impacted them – so even if the discrimination is widespread, individual plaintiffs are less likely to obtain a company-wide remedy for company-wide discriminatory practices; and
• lose out on the deterrent effect that a group action can have when numerous employees challenge discriminatory practices.

In the end, group actions fulfill the intent of our civil rights laws by producing real change in the workplace, often resulting in new workplace policies and procedures that more effectively address and combat discrimination for everyone.

In the words of Betty Dukes, our fight is not over. The ACLU will continue our work to ensure that this bill moves forward in Congress and that workers like Betty, and everyone she represents, will once again have the benefit of strength in numbers. You can stand with Betty too — urge Congress to co-sponsor the Equal Employment Opportunity Act of 2012 and help put an end to workplace discrimination today.

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