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Tuesday, March 29, 2011

Supreme Court Hears Dukes Oral Argument

The Supreme Court has just finished hearing oral argument in Wal-Mart v. Dukes, the national gender discrimination class action.

According to the Associated Press, "The justices suggested that they are troubled by lower court decisions allowing the class-action lawsuit to proceed against the world's largest retailer. Justice Anthony Kennedy, often a key vote on the high court, said he is unsure 'what the unlawful policy is' that Wal-Mart engaged in to deprive women of pay increases and promotions comparable to men."

Given Kennedy's swing role on the Court, this obviously is a bad sign for the plaintiffs.

I will post more news as it becomes available.

More from the AP:
Joseph Sellers, the lawyer for the women, said that lower courts were persuaded by statistical and other evidence put forth so far in the 10-year-old lawsuit.

Sellers said a strong corporate culture at Wal-Mart's Bentonville, Ark., headquarters that stereotyped women as less aggressive than men translated into individual pay and promotions decisions at the more than 3,400 Wal-Mart and Sam's Clubs stores across the country.

"The decisions are informed by the values the company provides," Sellers said.

Justice Antonin Scalia said he felt "whipsawed" by Sellers' description. "Well, which is it?" Scalia asked. Either individual managers are on their own, "or else a strong corporate culture tells them what to do," he said.


Justice Ruth Bader Ginsburg said that at this stage of the lawsuit, the issue is not proving discrimination, but showing enough evidence to go forward. "We're talking about getting a foot in the door," Ginsburg said, a standard she called not hard to meet.

The 78-year-old justice, who made her name by bringing discrimination claims, said it was possible that Wal-Mart could refute the claims at a trial.

But several of her colleagues appeared to agree with Boutrous that even subjecting Wal-Mart to a trial would be unfair.
The transcript is now available here. I will post more once I can review it.

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