David v. Goliath: A Brief Assessment of the U.S. Supreme Court's 2011 Ruling Denying Class Certification in Dukes v. Wal‐Mart

• Published date: 01 June 2013
• Date: 01 June 2013
• Author: Ronald J. Adams
• DOI: http://doi.org/10.1111/basr.12010

David v. Goliath: A Brief

Assessment of the U.S.

Supreme Court’s 2011 Ruling

Denying Class Certification in

Dukes v. Wal-Mart

RONALD J. ADAMS

ABSTRACT

In 2001, Betty Dukes, then a 54-year-old African Ameri-

can, 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

Ronald J. Adams is Emeritus Professor of Marketing, Department of Marketing & Logistics,

The University of North Florida, Jacksonville, FL. E-mail: radams@unf.edu.

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applicants for promotion—factors that led the majority to

question “the glue” binding the class together. Propo-

nents 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?

BACKGROUND1

“Wal-Mart Stores is an irresistible (or at least unavoid-

able) retail force that has yet to meet any immovable

objects” including, perhaps, the U.S. Supreme Court

(Hoover’s Company Profiles). Wal-Mart is truly a giant retail orga-

nization. As of January 2011, Wal-Mart is the largest corporation

in the world, generating three times the revenue as its nearest

competitor, Carrefour of France. It is also the world’s largest

retailer with over 2.1 million employees. In the United States, the

company employs more than 1.2 million workers, making it the

nation’s largest private, nongovernmental employer. Wal-Mart’s

domestic operations, which in some form (or format) operate in all

50 states, include 1,478 discount stores, 538 Sam’s Clubs (mem-

bership discount operations), 1,471 Supercenters, and 64 Wal-

Mart Neighborhood Markets. Internationally, Wal-Mart has

operations in Canada, Puerto Rico, Argentina, Brazil, China,

Germany, Mexico, South Korea, and the United Kingdom.

Perhaps because of its iconic status, Wal-Mart continues to be

the target of social criticism both domestically and in its interna-

tional operations. Regarding labor practices, specifically, critics

allege:

• The company pays sub-standard wages compared with its

principal competitors.

• Its employee benefit programs (e.g., health insurance, retire-

ment plans) are nonexistent, over-priced, or deficient.

• The presence of Wal-Mart, particularly in smaller communi-

ties, produces “ripple effects” that depress local wages and

employment.

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