Dukes v. Wal-Mart, the biggest class action lawsuit in United States history, narrowly—and rightly—focused on gender discrimination within the world’s largest private employer. As Rinku Sen detailed yesterday, Wal-Mart’s good-old-boy management practices resulted in women being paid less for equal work and shut out of opportunities to move up in the ranks. While the case didn’t explicitly address race, the Supreme Court’s pro-Wal-Mart ruling could have a disproportionate impact on women of color. I asked Nicole Mason, executive director of The Women of Color Policy Network, to break down how race matters in this textbook case of gender bias.
I know it’s impossible to see into the future, but do you think the Supreme Court’s 5-4 decision in favor of Wal-Mart will have a particular effect on women of color—particularly black and Latina women who make less on the dollar than their white and Asian counterparts and men of all races?
What we know from research [about] labor segmentation is that women of color are over-represented in lower-paying occupations. They tend to work in low-wage retail and service jobs. So yes, the Dukes v. Wal-Mart case will likely have a disproportionate impact on women of color because they are more likely to work in these positions.
Do you foresee a chilling effect on employment bias claims of all kinds?
Of course. What we’ve been seeing over the last 30 years is an erosion of Title V of the Civil Rights Act of 1964, which outlawed employment discrimination. The Wal-Mart ruling will make it [harder] for individuals to pursue class actions, even when they can show they have more in common with other [potential plaintiffs] than they have differences.
Devil’s advocate moment: What’s wrong with individuals filing discrimination suits?
Well, think about where Wal-Mart sets up shop: Places where people are desperate for a job. Especially in this economy, people are trying to hold on to any kind of job so they’re less likely to complain about wages, hours, harassment and discrimination. When individual workers feel vulnerable, there’s power in class action suit. If you take away that remedy, it’s devastating to low-income workers who don’t have the resources to pursue this kind of action on their own. And the courts know that.
Also, rulings like this one deter individuals from seeing larger systemic problems. People will pursue their own individual remedies to discrimination when they actually need to address a structural or systemic problem. This undermines a range of groups who have worked hard to create a structural analysis—blacks, gays, women, etc. Because it’s so big, the Wal-Mart ruling ties the hands of lawyers who might be able to take up such a case. It will also make it more difficult for the [Equal Employment Opportunity Commission] to identify patterns of discrimination.
It’s interesting. If you don’t follow the overall issue closely, you could think attacks on labor are about, say, teachers unions or undocumented immigrants. This Wal-Mart ruling points to something bigger.
Very soon after he took office, Obama signed into law the Lily Ledbetter Fair Pay Act. But then, not even two years later, we see this Supreme Court ruling against women workers at Wal-Mart. The irony is not lost. Here we have the office of the president—the first black president—saying, pay discrimination is not OK; there are laws to protect workers. But at the state level—think about the attack on workers rights in Wisconsin—and at the Supreme Court level, there’s an opposite message being sent.
Were you surprised that the high court ruled the way it did?
No, not when I consider the makeup of the Supreme Court. What this ruling points to is the need for diversity in the highest court. Unless you come from a position where have to think about discrimination, you’re going to continue to rule in favor of corporations and businesses.
Any way you look at it, this seems like a loss. What now?
It’s very disappointing and we should all be alarmed. Wisconsin was an alarm. This is an alarm. I feel like there needs to be some organized efforts, and [traditional] civil rights organizations have got to push back—hard. Progressive communities need to see this as an opportunity.