Abstract

In 2001, Betty Dukes, then a 54‐year‐old African American, filed suit against her employer, Wal‐Mart, alleging that she had been the victim of gender discrimination. Ms. Dukes alleged that Wal‐Mart, the nation's largest private employer, routinely paid women less than men for comparable work and arbitrarily favored men over women in promotion decisions. In 2004, a U.S. District Court entered an order granting class certification, potentially extending the retailer's financial liability to thousands of current and past Wal‐Mart employees. At that time, the Wal‐Mart suit was the largest class action lawsuit ever approved in the United States. In 2011, the U.S. Supreme Court reversed the lower court's ruling. Writing for the majority, Justice Scalia cited Wal‐Mart's long‐standing explicit gender‐neutral employment policy and the decentralized manner in which local managers have discretion to adjust salaries and recommend applicants for promotion—factors that led the majority to question “the glue” binding the class together. Proponents of the Court's decision hailed the ruling as a victory for business and a step in the direction of needed legal reform. Critics viewed the decision as another in a series of defeats for minority interests by a pro‐business, ideologically divided Court. Did the Court get it right, or is this yet another example of might defeating right?