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Dukes v. Wal-Mart: A Funder's Perspective

July 06, 2011

Dukes_plaintiffs As many of you are aware, the Supreme Court ruled on June 20 not to uphold class certification in the case of Betty Dukes v. Walmart, the largest sexual discrimination class-action lawsuit in U.S. history.

As Jeffery Toobin explains in The New Yorker, the chain of events leading to the court's decision goes all the way back to 2000, when Dukes, then a 54-year-old employee of the giant retailer, realized, after six years with the company, that

she had never had the opportunity for promotions that several of her male colleagues did. This was not unusual at Walmart. At the time, women comprised about seventy-two percent of the sales workforce and just a third of management -- and an even lesser percentage of upper management. So [she] sued, on behalf of herself and others "similarly situated"....

Dukes was joined in her suit, which was filed in U.S. district court in San Francisco in June 2001, by five current or former Walmart employees, who together sought to represent the 1.6 million women who worked or had worked in a Walmart store since December 26, 1998.

The plaintiffs were supported from the beginning by the San Francisco-based Rosenberg Foundation, which made a series of grants and program-related investments in support of the suit as it made its way through the lower courts, two foundation grantees -- Equal Rights Advocates, based in San Francisco, and the Impact Fund, across the bay in Berkeley -- and three private law firms.

That the business-friendly Roberts court, which heard oral arguments in the case earlier this year, rejected the plaintiffs' claims should come as no surprise. As Toobin writes, "all the Justices displayed varying degrees of distaste [during oral arguments] for the way the plaintiffs had proceeded" and "thought the case should be thrown out in its current form." But, Toobin adds,

The dissenters thought another theory might work better for the plaintiffs, [while] the majority was more skeptical about the plaintiffs' entire effort. In other words, it was unanimous that this case was too big. The conservatives on the Roberts Court have a well-earned reputation for hostility to civil plaintiffs of all kinds, and especially those with civil-rights claims. But it's worth noting that there was a good degree of ideological agreement in this case -- that there are some things simply beyond the abilities of our federal courts. And cases with a million plaintiffs are among them.

Be that as it may, the case "has had a tremendous impact on the civil rights landscape and on the fight to advance equality for women," says Rosenberg Foundation president Timothy P. Silard. And, as the short video below highlights, it also "exemplifies the value of investing in impact litigation as an essential advocacy tool."

What do you think? Was Dukes v. Walmart a win for the equality of women in the workplace? Would it have made it to the Supreme Court without the efforts and support of the Rosenberg Foundation? And should foundations be doing more to support impact litigation as a tool for effecting social change?

-- Mitch Nauffts 


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