Dukes v. Wal-Mart and What the Supreme Court Thinks About Oppression

In March of 2011, a class-action lawsuit was filed against giant retailer Wal-Mart, alleging that it consistently and unrepentantly discriminated against its female employees. Female employees of Wal-Mart alleged that they were paid less than male coworkers in the same or lower positions, refused promotions or refused access to information about how to get a promotion, and saw greater privileges and wages go to male coworkers who were less qualified, had fewer years on the job, and in some cases, that they themselves had trained. In their lawsuit, they called for an injunction that would force Wal-Mart to immediately cease its discriminatory practices, and also for Wal-Mart to grant them the fair wages they had been denied in back pay, the amount of which would likely come to around a billion dollars.

In June, the case went to the Supreme Court, and its momentum ground to a halt. The court ruled in favor of Wal-Mart — not because there wasn’t significant evidence to support the women’s case, there was — but because it ruled that the women of Wal-Mart didn’t constitute the “class” required for a class-action lawsuit. Among other issues relating to the technical legal definitions of a “class,” there’s a question of “commonality,” which means “questions of law or fact” common to the class. Wal-Mart is the largest private employer in the world, and women make up roughly 72% of its hourly employees. What could a group that large possibly have in commonality with one another?

The question, really, was whether the shared identity of being female was enough to mean that everyone within the “class” had been marginalized and harmed by an institution which they depended upon. And while there were other legal concerns (like the fact that the women were asking for both an injunction and a monetary reward, whereas most class action lawsuits only ask for one), the Supreme Court essentially considered this question and answered “no.”

Dayna Tortorici’s article this week in n+1 asks what it means to have the structure designed to uphold equality and justice refuse to recognize inequality, even with plentiful evidence, and places the Supreme Court’s ruling in a context of legal precedent that has either answered or ignored women’s call for equal treatment under the law, especially in the workplace. It seems that while facts of gender inequality and sex discrimination are fairly indisputable, from the wage gap to the countless documented incidents of hiring discrimination against women, there isn’t strong interest from the judicial branch in confirming that woman, and other groups, face institutionalized oppression because of their status as women. As Tortorici puts it:

“…a class of people large enough to constitute a population majority—as women did—could not feasibly be “oppressed,” or oppressed enough to require extra attention at the level of judicial review. The criterion was logical, but it couldn’t accommodate the illogical reality of patriarchy, whose influence on every aspect of  daily life is so big as to be essentially invisible. It seemed as if the law could not comprehend the scope of the inequality it had confronted.”

It seems like women’s sheer numbers may be working against them as far as legal recognition of their marginalization. In that sense, maybe groups like the gay community at least has a literal minority to its name. So during the Prop 8 trial, when experts testified that gays experienced social stigma and harmful quantifiable effects of discrimination, the ruling was that Prop 8 constituted discrimination and anti-gay animus. But for subsequent rulings in higher courts, even when Prop 8 has been struck down, it’s been in ways that don’t make assertions about marriage inequality or what it means, and instead operate upon smaller, more technical aspects of the law. It would seem that higher courts aren’t as comfortable as we might like with recognizing and ruling upon the lived realities that oppression and inequality create. As the much-discussed “war on women” has demonstrated, the legislature isn’t necessarily an institution upon which women or any other marginalized group can rely to give them the protections they need, and while the fact that DOMA was declared unconstitutional and Edie Windsor recently won her case against the federal government are heartening, it seems as if it may not be wise to rely upon the courts, either.

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Originally from Boston, MA, Rachel now lives in the Midwest. Topics dear to her heart include bisexuality, The X-Files and tacos. Her favorite Ciara video is probably "Ride," but if you're only going to watch one, she recommends "Like A Boy." You can follow her on twitter and instagram.

Rachel has written 1142 articles for us.


  1. This is really upsetting especially when it seems that there is no legislative way to attack the marginalization of Women and we seem to have more women (in terms of percentage and realistic representation) in the judicial branch. I feel like the war between the letter of the law and the spirit of the law will continue to not only negatively effect our rights, but the rate at which Women can reach and maintain equality in this country.

  2. Horrible! And let’s not even get started on how they treat their 90% female factory workforce overseas… is there like an *award* for most anti-feminist company ever? Because they’re definitely in the running.

    • I skimmed your articles, and feel a little dirty for giving you the page views.

      From what I read, it really seems like the gist of your argument is “Women expect men to take care of them so they can take low paying jobs, but poor men have all this pressure to make money so that women will like them, so they have no choice but to go after high paying jobs.” Mixed in with some extremely offensive statements comparing a man having to pay child support to forcing a woman to carry a child to term against her will and then forcing her to pay child support.

      There is a lot wrong with your economic arguments, the first of which is that you seem to ignore the basic fact that the current system was set up by men and all of the implications that come with that.

      Oh, and until having to pay child support also includes a complete loss of bodily autonomy for 9 months and permanent changes to the male body, the child support statement is disingenuous.

      Finally, I’m very sorry that your life as a white, heterosexual, cis-gendered male (I am making some assumptions with that description) has been so profoundly difficult and unfair.

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