Constitution Daily

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Wal-Mart, Women and the Constitution

June 22, 2011 by Lyle Denniston


Almost 10 years to the day after Betty Dukes, an employee in Pittsburg, Calif., of the discount retailer, Wal-Mart Stores, started a now-famous lawsuit in federal court, she and close to a million other women who have worked for the giant company have lost the case, in a near-total defeat in the U.S. Supreme Court.

Photo source: Wikipedia

It has been the highest profile workplace discrimination case in history, and surely the biggest, and it played out against a background of law that included the Constitution – but not on the women’s side.  Part of the reason that Wal-Mart ultimately won is that, increasingly, the Constitution is emerging as a strict limit on the right of workers to band together – as Betty Dukes and her female co-workers did – to challenge a corporation in court.  In short, the legal device their lawyers used – the “class action” lawsuit – appears to be running up against some growing constitutional restraints.

A few basic things about the Constitution need to be sorted out as one looks deeper into the Court’s Wal-Mart decision.  First, Ms. Dukes and her colleagues were not claiming that their constitutional rights were violated by the retailer’s alleged bias against women employees.  Wal-Mart is a private company, so its operations are not governed by the Constitution.  Rather, the women’s lawsuit was based on a claim that the company’s store managers – true to what the women argued was part of the “corporate culture” at Wal-Mart -- had violated federal laws that assure workplace equality.

But the Constitution, in a very real sense, was very much on the minds of Wal-Mart’s lawyers when they took the case to the Supreme Court after lower courts had cleared the way for the job bias case to go forward on behalf of a class of perhaps 1.5 million women.  Those lower court rulings had been major victories for the Wal-Mart women: Each of them, had they sued alone, might not have had enough of a claim to entice lawyers to represent them.  But the prospect of a class action raised the stakes, and the dollar amounts, into the billions, potentially.

One of the powerful facets of a class-action lawsuit, for the suing class, is that such cases can be very expensive as they go through years of court action, raising the prospect that the company will simply come to the point that it would rather settle than go on fighting and spending money on lawyers.

In the company’s appeal, it asked the Court to put a stop to the class-action maneuver, first because its lawyers claimed that the lawsuit in that form violated a federal court rule (specifically, Rule 23) limiting class-action cases, and second because they claimed that the class approach would violate Wal-Mart’s right to a fair trial before a fair jury.

The constitutional claim was as serious as the one based on Rule 23.  The company has a legal team that was well aware that the current Supreme Court majority – following the lead of Justice Antonin Scalia on this point – is increasingly concerned that class-action lawsuits are tilted too much in favor of those who sue, and against their corporate targets.   The Constitution’s Due Process Clause is thus, potentially, a strong assurance of fair procedures – including, for example, an assurance that the company can force each individual in the suing class to show how they, personally, suffered a legal injury.

It was a bit of a surprise, however, when the Supreme Court agreed to take on the Wal-Mart appeal, and gave an initial sign that it would focus only on the Rule 23 challenge, not on any constitutional implications.   But that was a bit misleading. The due process guarantees, judges and lawyers understand, always inform the similar procedural protections of Rule 23.

And, indeed, when the Court’s final ruling emerged (in a main opinion written by Justice Scalia), it seemed  – at least by reading between the lines – that the Court was moved, in considerable part, by a sensitivity to the company’s right to due process in the constitutional sense.

It very likely will take a few more cases for the constitutional implications of class-action lawsuits to emerge more prominently in the Supreme Court.   But, as it happens, the next case that could do exactly that has already reached the Court, and will be acted upon soon – an appeal by four major tobacco companies, relying solely on the Constitution in challenging a $270 million class-action verdict in a state court case from Louisiana, about smokers’ health.

Lyle Denniston is the National Constitution Center's Adviser on Constitutional Literacy. He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Court's work.

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