The Wal-Mart Way': Dukes v. Wal-Mart Stores, Inc., Social Change, and the Canadian Legal Landscape

• Author: Raewyn Brewer
• Position: LL.B. (UVic); law clerk, British Columbia Court of Appeal (2006-2007)
• Pages: 10-38

10 n APPEAL VOLUME 12

“THE WAL-MART WAY”:

DUKES V. WAL-MART STORES, INC., SOCIAL

CHANGE, AND THE CANADIAN LEGAL LANDSCAPE

Raewyn Brewer, University of Victoria - Faculty of Law

Raewyn Brewer, B.A. (UVic); LL.B. (UVic); law clerk, British Columbia Court of Appeal (2006-2007); articled

student, Farris, Vaughan, Wills & Murphy LLP (2007-2008). I am grateful to Rodney Hayley and John Kilcoyne

for their guidance during the writing of this article, and to the anonymous reviewers and editors of Appeal:

Review of Current Law and Current Law Reform for their helpful comments. This article was written in my

personal capacity prior to my clerkship with the Court of Appeal.

CITED: (2007) 12 Appeal 10-38

INTRODUCTION

As the world’s largest private employer and retailer, it is not surprising Wal-Mart Stores,

Inc.1 (“Wal-Mart”) is sued “every 90 minutes every day of the year”.2 Although some of these

lawsuits have attracted national and international attention, none have achieved the notoriety

of Dukes v. Wal-Mart Stores, Inc (“Dukes”).3 Dukes is the largest employment discrimination

class action in American history.4 Jenkins J. of the United States District Court for the Northern

District of California certif‌ied Dukes as a class action in June 2004. His ruling paved the way

for a case that “dwarf[s] other employment discrimination cases”.5 The Dukes plaintiffs are ap-

proximately 1.5 million women who have been employed at roughly 3,400 Wal-Mart stores in

the United States “at any time since December 26, 1998 who have been or may be subjected

to Wal-Mart’s challenged pay and management track promotions policies and practices”,6 con-

1 Wal-Mart Stores, Inc. was founded by Sam Walton in Arkansas in 1962. The company employs more than 1.3 million as-

sociates worldwide and in nearly 5,000 stores across f‌ifteen countries, including the United States, Mexico, Puerto Rico,

Canada, Argentina, Brazil, China, Korea, Germany and the United Kingdom. Worldwide, about 140 million customers

visit Wal-Mart stores weekly. Wal-Mart has topped the FORTUNE 500 list of companies for four consecutive years (2000-

2004), with annual global sales of over 250 billion. Wal-Mart has also been named a “most admired retailer” by FORTUNE

Magazine. “The Wal-Mart Story” online: Wal-Mart .

2 In 2002, Wal-Mart was sued 6,087 times. Amongst the suits: refusing to pay overtime, forcing employees to work with-

out pay during lunch and rest breaks, and violating the Federal Fair Labor Standards Act’s child labor laws. Cora Daniels,

“Women vs. Wal-Mart” Fortune (21 July 2003), online: CNN -

chive/2003/07/21/346130/index.htm>; see also Ritu Bhatnagar, “Recent Development: Dukes v. Wal-Mart as a Catalyst

for Social Activism” (2004) 19 Berkley Women’s Law Journal 246 at 248.

3 Dukes v. Wal-Mart Stores, Inc., 2004 U.S. Dist. LEXUS 11 297 (Lexis) (N.D. Cal.), 222 F.R.D. 137 [Dukes]. Every major

mainstream media outlet covered the case; Liza Featherstone, Selling Women Short (New York: Basic Books, 2004) at 246.

4 Dukes, supra note 3 at 6. I use the terms class action and class proceedings interchangeably throughout this paper.

5 Ibid.

6 Ibid. at 5.

APPEAL VOLUME 12 n 11

trary to sex discrimination acts under Title VII of the 1964 Civil Rights Act.7

In Part I of this paper, I f‌irst detail this historic class certif‌ication by addressing how the

Dukes action arose. Second, I outline the four requirements for class certif‌ication under the

Federal Rules of Civil Procedure, 23(a) and 23(b)(2) (“Rule 23”)8 and summarize the District

Court’s ruling. The Dukes certif‌ication ruling is currently under appeal. In Part II, I argue that

regardless of the outcome at the Court of Appeals, Dukes has already positively altered “The

Wal-Mart Way”. I also suggest that an adjudicative order in favour of the plaintiffs or a settle-

ment between the parties will increase the salutary effects of Dukes. Finally, in Part III, I explore

the viability of a similar class action in Canada. Unfortunately, I do not yet have a blue-print for

a Canadian Dukes—there are many intricacies and complications that need to be worked out.

That being said, I articulate a number of possible arguments and identify specif‌ic areas in need

of further exploration. My hope is that this article will begin a dialogue, ultimately creating a

space for viable Canadian employment discrimination class actions.

PART I – Dukes v. Wal-Mart Stores, Inc.: The Historic Case

SO BEGAN DUKES V. WAL-MART STORES, INC.

In 1996, in a Californian Wal-Mart warehouse chain called Sam’s Club, an assistant man-

ager named Stephanie Odle discovered she was making $10,000 less a year than her male

colleague. Odle’s supervisor explained to the single mother that her less experienced male

colleague received a higher salary because he had a “wife and kids to support”. After sub-

mitting a household budget for inspection, she eventually received a $40 per week raise. In

1999, humiliated and angered by her experience, Odle f‌iled a sex discrimination claim with the

Equal Employment Opportunity Commission (“EEOC”) which oversees Title VII of the 1963

Civil Rights Act.9 Odle secured the services of Stephen Tinkler and Merit Bennett, of Sante Fe,

New Mexico, who had previously represented plaintiffs in sexual harassment suits against Wal-

Mart. It was during one of these suits that Tinkler and Bennett obtained a court order compel-

ling “Wal-Mart to produce workforce data on its hourly and management employees broken

down by gender”.10 Although the vast majority of lower-level hourly positions were held by

women, the data Wal-Mart produced revealed very “shockingly few women in management

positions”.11 Tinkler and Bennett thus set about assembling a team of lawyers dedicated to

changing Wal-Mart’s discriminatory practices and earning Wal-Mart’s working women the

money they deserved.

The Dukes team consists of three non-prof‌it groups (The Impact Fund, Equal Rights Advo-

7 Dukes, supra note 3 at 3. Civil Rights Act, 42 U.S.C. § 2000e et seq. (“Title VII”). Sec. 2000e-2 (a) “It shall be unlawful em-

ployment practice for an employer – (1) to fail to refuse to hire or to discharge any individual, or otherwise to discriminate

against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin”; Title VII covers all private employers, state and local governments,

and educational institutions that employ f‌ifteen or more individuals.

8 Fed. R. Civ. P. 23.

9 Daniels, supra note 2; Featherstone, supra note 3 at 20-25. Title VII created the EEOC to enforce implementation of the

legislation, including conducting investigations and gathering data.

10 William Rodarmor, “The Class of ‘04: How a tag team of plaintiffs lawyers embarrassed Wal-Mart in the largest class action

in U.S.” California Lawyer (September 2004) online: California Lawyer.com .

11 Featherstone, supra note 3 at 22. This information could not be used directly in the case as it had been obtained under a

conf‌idential court order. Therefore, as addressed on page 5 of this paper, economist Marc Bendick was hired to analyze the

employment data submitted yearly to the EEOC by Wal-Mart.