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In fight against Wal-Mart, lawyers aren't enough

By Liza Featherstone, Special to CNN
  • Dukes vs. Wal-Mart began in 1996 with the ordeal of Stephanie Odle
  • Supervisor told Odle: Co-worker makes more money because he supports family
  • Women from all over the country came forward with similar stories
  • Today's Supreme Court decision supporting Wal-Mart is slap in the face, says Featherstone

Editor's note: Liza Featherstone is the author of "Selling Women Short: The Landmark Battle for Workers' Rights at Wal-Mart."

(CNN) -- For those of us educated in the wake of Brown vs. Board of Education, it's hard not to endow the Supreme Court with awesome powers to wield on behalf of goodness and light. But Dukes vs. Wal-Mart, the massive sex discrimination suit against the nation's largest private employer, has been a painful lesson in the limitations of the courtroom remedy.

The case was struck down today after 10 years of litigation, as the Court ruled unanimously not to certify Dukes as a class action suit.

Dukes vs. Wal-Mart began in 1996 with the ordeal of Stephanie Odle. A supervisor told Odle, when she was an assistant manager about to become a single mother, that a co-worker made more money because he "supports his wife and his two kids."

Women from all over the country came forward with similar stories. Another employee, Christine Kwapnoski, was told she'd have a better chance of promotion if she "dolled up" and swept "the cobwebs" off her make-up. Many plaintiffs and witnesses have described seeing much younger men -- with far less experience -- promoted over them.

The company's personnel data supports this narrative of gross disparities. Across Wal-Mart's operations -- regardless of geography -- women have been paid less than men, and promoted less quickly, although they had higher performance evaluations than their male co-workers, and tended to stay with the company longer.

A right-wing economist -- or perhaps, a Wal-Mart manager -- would look at such statistics and come to one conclusion: Women are, overall, less competent than men. But the rest of us would roll our eyes and rule that one out without much deliberation.

Clearly, systemic discrimination is at least a possibility. But the women have never yet had a chance to argue their case. Since Dukes was filed in 2001, its merits have never been discussed in a courtroom -- only the question of whether the case can proceed as a class action suit.

Lower courts have ruled in favor of certifying Dukes, but the plaintiffs' wealthy and powerful foe has repeatedly appealed, and most observers have assumed that the pro-business justices on today's Supreme Court would take Wal-Mart's side.

Today's decision, supporting Wal-Mart's argument that it's just too big to be sued, is a slap in the face to anyone hoping to fight a corporation in court. It's even more troubling, however, that this glacial, and ultimately ineffective, process was the only way that these women could seek justice.

Wal-Mart has never allowed its employees to join a union. Government enforcement of anti-discrimination laws has been weak. While groups like the National Organization for Women did organize some protests against Wal-Mart, public attention to the issue has, over the years, been sporadic. Lacking strong institutions to support them, the flawed tool of the class action suit was the Dukes plaintiffs' best option.

That needs to change. Women and workers have learned from the painful experience of Dukes that while the courts can sometimes help, lawyers can't fight our battles for us.

The opinions expressed in this commentary are solely those of Liza Featherstone.