So much has already been written about WalMart Stores, Inc. v. Dukes (pdf), but since this is my first blog entry and this is such a seminal gender discrimination case, I wanted to add my musings to the mix.
First and foremost, as counsel for employers, I am thrilled with the result. Conceptually a class this large just makes no sense. How could a subjective decision by a manager in California possibly be linked to discretionary decisions by other managers in Florida? There is no doubt that the procedural aspects of this ruling will provide plenty of fodder for the defense of all types of employment class actions. Many have addressed these issues in great detail and many more will.
But what is interesting to me about this case, and what I have been ruminating about since the ruling, is how I feel about this case as a woman, or feminist, and not as an employment attorney representing employers. Does being a feminist (or a woman who enthusiastically supports women’s causes) mean that women should always win? I grappled with this issue back in law school and in my note (which happened to be on the topic of Father’s Rights in custody cases), I concluded that it did not. For me, the advancement of women’s issues did not mean that women should automatically win in the cases they brought. Indeed, I concluded that women’s issues might actually benefit if fathers were granted equal rights in the home, and women weren’t the only ones expected to do it all.
I still believe that. The plaintiffs in this case have alleged that men were tapped on the shoulder and promoted, while they were not. As this case progresses, if their claims prove to have merit, as a woman would I empathize? Absolutely. But does that mean that the women of WalMart should not have to meet reasonable procedural hurdles to pursue their claims? Absolutely not.
Being a feminist does not mean that women have to always win.