Walmart Case: Plaintiff Betty Dukes Tells Congress the Supreme Court Got It Wrong

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Betty Dukes, the Walmart greeter who lost her bid last week to bring the largest employment discrimination class action suit in history, told Congress on Tuesday that the Supreme Court got it wrong.

The decision to block the case from going forward, she said, will weaken women's rights to be protected against sex discrimination.

Last Tuesday, a 5-4 majority of the court ruled that nearly 1.5 million former and current Walmart employees could not go forward with their suit against the company because they failed to show that they had enough in common to bring the case. Justice Antonin Scalia said the women provided "no convincing proof" of a companywide discriminatory pay and promotion policy.

Dukes, the lead plaintiff in the case, argued that fellow plaintiffs will no longer be able to band together to bring suit, but instead will have to bring multiple challenges.

In testimony before the Senate Judiciary Committee, Dukes said the majority's opinion means "many women will give up."

"It is too hard to go up against Walmart on their own," she said.

Sen. Patrick Leahy, D-Vt., the committee chairman, called the hearing to highlight recent Supreme Court decisions and examine their impact.

Leahy has been critical of the Walmart ruling, saying in his opening statement that the case, "gives Walmart, and the rest of corporate America, a clear path to avoid company-wide sex discrimination suits: Have your lawyers write a non-discrimination policy, then allow your local branches to implement compensation decisions, and you can hide behind your policy regardless of what really happened to your employees across America."

But Andrew J. Pincus of the law firm Mayer Brown, who frequently argues business cases in the court, said Walmart plaintiffs presented the court with a "radical approach," failing to prove a critical component necessary for class action certification: whether there are questions of law common to the class.

In his written testimony, Pincus said, "The Supreme Court majority was surely correct in concluding that the very slim body of evidence adduced by the plaintiffs simply was not sufficient to permit this gargantuan class action to move forward."

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