The gender discrimination lawsuit against Wal-Mart is over ten years old. It began in 2000, with a woman named Betty Dukes, who had then been employed as a greeter for nearly six years. She alleged that, despite excellent reviews, she had never been promoted by Wal-Mart; Wal-Mart, in turn, alleged that they had declined to promote her because she returned late from her lunch breaks. But Dukes did not back down, and her case spiraled out, both in terms of its plaintiffs and its potential consequences. It is now a class action lawsuit with over 1.6 million plaintiffs, all female. It has been called “historic,” both for its size and for the questions it raises. For truly, the decision facing the Supreme Court now is not simply whether the Wal-Mart case is too large to be prosecuted as a class-action lawsuit. It is whether women constitute a class.
When U.S. District Judge Martin Jenkins gave the go-ahead for the case to proceed as a class action suit, in 2004, he did so on the basis of statistics. The plaintiffs in Dukes v. Wal-Mart, he found, presented “largely uncontested, descriptive statistics which show that women working in Wal-Mart stores are paid less than men in every region, that pay disparities exist in most job categories, that the salary gap widens over time even for men and women hired into the same jobs at the same time, that women take longer to enter into management positions, and that the higher one looks in the organization, the lower the percentage of women.”