Class Action

The Supreme Court’s 5-4 decision in the Wal-Mart case is producing predictable reactions, echoed back in headlines and editorials (Wal-Mart Stores, Inc. v. Dukes et al., reachable here). This was a class action suit brought in the name of Betty Dukes and four other women (Edith Arana, Dee Gunter, Christine Kwapnoski, Stephanie Odle) who stand in for 1.5 million women who’ve worked for Wal-Mart and collectively charged that Wal-Mart managers systematically discriminated in pay and promotions in favor of males.

The issue here, in my opinion, is not that women consistently and routinely earn less than men. Both in this version and in the old LaMarotte I’ve argued that point using national statistics more than once. The issue is whether such discrimination arises from a conscious, deliberate, and official act by the management of Wal-Mart, thus a policy, a policy that Wal-Mart managers followed because they were required to do so. That’s it, isn’t it? Or am I being unnecessarily rational? When you have a nation where women are consistently earning less than men, yes even if they are equally qualified and in the high professions, is the aim of class action suits really rationally based? Or is the motive something else? Could it be money? Not necessarily. Certainly not in this case.

The law firm representing Betty Dukes and the other women was Impact Fund, a Berkley-based not-for profit law firm begun in 1992. In its last fiscal year (2009-2010), Impact Fund had revenues of $1.2 and expenses of $1.07 million—most of the income being grants and contributions, a mere $65,000 being attorney’s fees and costs (I presume they mean cost reimbursements). That $65,000 covered Impact Fund’s rental costs which happened to be $64,290 in that fiscal year. The firm’s annual report is available here.

Based on the profile of the law firm behind Betty Dukes et al., this litigation was not the usual attempt at raiding deep pockets. My own interpretation, based on looking at the firm’s history—it belongs in a category called “public interest litigators”—is that it is itself, you might say, a class action, thus the action of a segment of the well-educated upper class, people who want to do good things—and within the system rather than outside, thus by terrorism, violence, sabotage, etc. Public interest litigators also have what might be viewed as a “private interest” counterpart, the people who do go after deep pockets precisely because they’re deep.

Now here I would note that good will and a benevolent stance do not, in combination, always magically produce consistently rational reasoning. I am personally certain that Wal-Mart is not unique, thus the company does not have a policy of discriminating against women. What Wal-Mart lacks is what the nation lacks as a whole—namely, to use an ugly word, a proactive will to correct an imbalance in the compensation of women arising from (1) the traditional female role in the home, (2) the lack of aggressive traits in females, traits that are innate in males, (3) the powerful tendency to pay as little as possible (for anything), and (4) women’s willingness to work for lower wages. But if Wal-Mart doesn’t have a policy, why should it be singled out for punishment? Isn’t that a certain species of injustice too?

This case, now decided in favor of Wal-Mart, shows the difficulties of working within a system, piecemeal, in a great fog of societal decline. The consistent, rational solution to unequal pay for women would have to be a national, and indeed draconian, program—a nationally set single wage system, every job classified, heavy punishment for either working for or paying wages outside that system, enforced by a gigantic bureaucracy of Pay Police, each member of which, at every level, would be paid the same, whether female or male.