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Plaintiff Betty Dukes talks to the media on the steps of the U.S. Supreme Court after the class action lawsuit Dukes v. Wal-Mart was argued before the court in Washington, in this March 29, 2011 file photo. The Supreme Court ruled for Wal-Mart Stores Inc. on June 20, 2011 in the largest sex-discrimination lawsuit in history, saying class-action status for female employees seeking billions of dollars had been improperly granted. The justices overturned a U.S. appeals court ruling that more than a million female employees nationwide could join in the lawsuit accusing Wal-Mart of paying women less and giving them fewer promotions.
Justice, including economic justice, remains a bedrock commitment not only of Judaism, but of pretty much every religious tradition I know. In fact, among the Hebrew Bible’s most famous words may be those of Deuteronomy 16:20 – “Justice, justice you shall pursue.” Those words are so powerful because giving people a fair shake and equal opportunity under the law are not simply nice ideas; they are among the foundational values of any successful society.
Given all that, the level of emotion surrounding the Supreme Court ruling against plaintiffs who wanted to certify a class including as many as 1.5 million women to sue Walmart for discrimination, is not surprising. It’s also a case of misguided anger.
In fact, the court’s ruling is anything but the “miscarriage of justice” alleged by New York Congresswoman Nydia Velasquez. It’s certainly frustrating that among the plaintiffs are almost certainly women who were unfairly denied career advancement simply because they are women. That is wrong and those who denied them should be held accountable. But what happened in this case was about much more than that.
Contrary to Ms. Velasquez, the court’s decision upheld justice and reminded us that redressing injustice through unjust means creates as many problems as it solves. Perhaps that is why the word “justice” is repeated twice in the verse i.e. we can only pursue justice through just means.
By attempting to certify a class as large as they did, and by seeking to bring suit under a portion of the law which is not directed at recovering financial loss, those bringing the suit undermined themselves and deserved to be turned away. Had they not sought financial redress, perhaps they would have succeeded in certifying the entire class. Or, they could have brought suit on behalf of a smaller group who certainly seem entitled to some form of financial redress for what sure looks like unfair treatment.
Ultimately, the plaintiffs and their lawyers handed themselves a defeat which could have and should have been avoided, reminding me of the classic Talmudic teaching that when you grab for too much, you end up holding nothing in the end.
As attempted by the plaintiffs, this would have been a suit seeking billions, yes with a b, billions of dollars. It’s hard to imagine that wasn’t driving the decision to create this huge class, a group which included employees from states in which not a single discrimination complaint was ever filed against Walmart. And even with a much smaller class, there would still have been enough money at stake to incentivize lawyers to act on their clients’ behalf – a concern raised by some who see this as a loss for women’s rights.
So while the court’s decision may be deeply frustrating for many of us, their decision represents a victory for those seeking to address the real discrimination that does still exist in the American workplace. Discrimination still holds specific women back in their careers and rationalizes paying specific employees unequally when compared with their male counterparts. By insisting that only those who have suffered such discrimination be the clear focus of any suit brought against employers, the court echoes the importance of seeking justice, justly.