What's at stake in the Walmart women's lawsuit

April 1, 2011

The US supreme court heard oral arguments Tuesday on what could be the largest class action civil rights suit in US history. Or it could be the case that stops class action history in its tracks. Monster megastore Walmart is challenging a lower court's decision to permit women employed at thousands of Walmart stores to join together to contest alleged gender discrimination in pay and promotion practices.

"This has been a ten-year process," says plaintiff Edith Arana. What keeps the women of Dukes v Wal-Mart going, she says, is the belief that something bigger than them is at stake. (Walmart revised the form of its name a few years back.) Says Arana:

"I know what happened to me and it's not just me. The women of this lawsuit are the poster children for the all the women who couldn't do this, and they each have families and names and faces."

That, when it comes to class action lawsuits, is the whole point. Class action lawsuits have probably been the best tool since the passage of the 1964 civil rights act to bring forth claims and win cases against companies that discriminate. The case now before the court will decide not only if women like Arana and Betty Dukes experienced discrimination, but if an entire class of workers did.

It couldn't be a more contentious issue, at a more contentious moment. As Columbia University political science professor Dorian Warren noted on GRITtv this week, the Walmart case comes before a court that has been sceptical not just of discrimination cases, but of the very idea of "class action". And it comes before a nation that – from Madison to Main Street in just about every state – is in the streets over that very concept.

Coming up on 4 April is a nationally coordinated day of action by US trade unions and their allies: We Are One. The protesters will be recalling Dr Martin Luther King's legacy – on the anniversary of his assassination. But they could do worse than to take a tip from the Tea Party types and read the US Constitution while they're at it. Listen in to one of those Tea Party recitations and you'll find constitutionally guaranteed freedoms of speech, of the press and of the right peaceably to assemble and petition government for redress. For working Americans living in the most dramatically divided economy in a century, every one of those avenues is under attack.

Freedom of the press? Concentration of media ownership is consolidating press power into a few mighty hands. As in the recently approved NBC/Comcast merger, the power in question is the power to shut others out.

Assembly? After weeks of inconvenient public protest for labour rights and against draconian cuts to public services and the people who provide them, the city of Madison just restricted speech in the people's Capitol building to a small "free speech zone" – for the first time in Wisconsin history. In Albany, New York, protesters faced a sign that told them only "senators, staff and lobbyists" were welcome in the state's house.

The Roberts court has ruled for business interests 61% of the time, according to the New York Times, compared with 46% for the similarly conservative-leaning Rehnquist court, and 42% for all since 1953. The US Chamber of Commerce has been involved in many of those decisions – and had their wishes gratified 68% of the time. "There has been a return on investment, not to sound too crass," Robin S Conrad, executive vice president of the chamber's litigation unit, told the Times.

And then, of course, there's the Citizens United v FEC decision, by which the supreme court ruled to lift limits on anonymous corporate spending on elections.

The courts, the court of opinion, elections, the banks, the workplace – you'd be forgiven for thinking the powerful had the US pretty much sewn-up. As Dorian Warren put it:

"If the courts strike down the women's ability to sue Walmart, this pretty much fundamentally weakens a core tool of collective action for workers. Similarly, what we see in the public sector – it's targeting workers' ability to come together."

On the other hand, there is still that pesky Constitution. And the very real possibility of overreach by the corporate-backed right. Take a look around on 4 April. I suspect this battle's not over yet.