Minister leads women in fight with Wal-Mart

As a "greeter", the cheerful Betty Dukes is one of the first employees customers usually see as they walk through the front doors of the Pittsburg Wal-Mart store.

As the first "named plaintiff" in Dukes v Wal-Mart, the ordained Baptist minister also is the face of the largest gender bias class action lawsuit in United States history; it could cost the world's largest private employer billions of dollars.

Her dual roles have turned her into a civil rights crusader for the company's many critics, who have dubbed the legal battle "Betty v Goliath". It is a far cry from where Dukes expected to be when she enthusiastically accepted an offer in 1994 to work the cash registers part-time for US$5 ($6.90) an hour. She dreamed of turning around a hard life by advancing, through work and determination, into Wal-Mart corporate management.

"I was focused on Wal-Mart's aggressive customer service," Dukes said during her lunch break. "I wanted to advance. I wanted to make that money."

But by 1999, her plans were in tatters. Several years of little advancement and frustration with her role culminated with an ugly spat with managers that resulted in a humiliating demotion and a pay cut, she said.

That also became the genesis of the federal class action lawsuit that US District Court Judge Martin Jenkins called "historic" while he was handling the case. On Monday, the 9th Circuit US Court of Appeals upheld Jenkins' decision allowing the case to go to trial as a class action on behalf of as many as one million former and current female Wal-Mart employees.

Jenkins has since stepped down from the federal bench and the case will now be handled by US District Court Judge Vaughn Walker, who is also deciding another high-profile case, the legality of California's voter-approved ban of same-sex marriages.

Dukes' lawsuit alleges Wal-Mart is violating the 1964 Civil Rights Act, which made it illegal for employers to discriminate on the basis of race, creed or sex. Dukes alleges that Wal-Mart systemically pays women less than their male counterparts and promotes men to higher positions at faster rates than women.

The Bentonville, Arkansas, retailer denies the accusations and argues that if there are any instances of discrimination they are isolated, and not an overarching company policy.

Wal-Mart says any such cases should be handled as individual lawsuits, not as a class action.

The retailer has fiercely fought the lawsuit since it was filed in federal court in San Francisco in 2001 and said it would appeal against the most recent decision to the US Supreme Court.

The incident that sparked the epic legal battle began while Dukes served as a customer service manager. The 60-year-old needed change to make a small purchase during her break. She asked a colleague to open a cash register with a one-cent transaction, which she claims was a common practice. Nevertheless, she was demoted for misconduct. She complained to a manager that the punishment was too severe and part of a long campaign of discrimination that began almost as soon as she started working for Wal-Mart.

She believed the reprimand was partially motivated by race. She is black and the managers were white. When those complaints were ignored, Dukes sought legal advice.

She ended up being represented by Brad Seligman, a lawyer who had launched the Impact Fund, a legal nonprofit foundation, in 1992.

Seligman said he asked Dukes to serve as lead plaintiff in what would become a vast class action because of her strong personality.

"I'm somewhat in awe of her, particularly that she has managed to work at Wal-Mart for all these years," Seligman said. "It is extraordinarily difficult to find someone who wants to risk their jobs by filing a lawsuit against their employer."

Seligman and other lawyers told Dukes that she was not alone, that many other women had similar complaints. They said they would like to use her and five other former and current Wal-Mart employees to file the class action lawsuit.

"My jaw fell open," Dukes said when told of the other complaining women. "I thought I was by myself."

That was nine years ago. And with Wal-Mart insisting the lawsuit is without merit and vowing to continue its fight, it appears the litigation has more years to go.

Dukes is undeterred by that prospect and sanguine about the outcome.

"It's a very courageous thing for a person to do, to stick with it over such a long period of time," said Marcia Greenberger, founder of the Washington advocacy group National Women's Law Centre. "The individuals who step forward pay a very big price to be willing to tell their stories and to hold their records up to public scrutiny."

The centre has filed a "friend of the court" brief supporting the Dukes lawsuit, as have the National Association for the Advancement of Coloured People and the Mexican American Legal Defence and Educational Fund. The US Equal Employment Opportunity Commission also has filed a brief supporting the lawsuit.

The US Chamber of Commerce and other organisations, fearful that a ruling in Dukes' favour would expose other companies to costly lawsuits, have filed briefs urging dismissal of the complaint.

Ms Magazine named Dukes one of its "Women of the Year" for 2004, the same year Liz Featherstone's book Selling Women Short: The Landmark Battle for Workers' Rights at Wal-Mart was published. Featherstone has compared Dukes to Rosa Parks, the civil rights crusader who became an icon of the movement by refusing to surrender to a white man her seat on a public bus.

Through it all, Dukes has remained humble, saying she lives with her mother because she cannot afford a place of her own on her US$15.23 an hour salary.

She is guarded about her past life, vaguely saying she has faced "many tsunamis". Dukes' mother moved the family from Louisiana to California 50 years ago. Dukes was married but is single today and childless.

She preaches often at her church on Sunday and said that fellow employees often approach her for spiritual counselling. She slipped into preacher mode when asked about the Betty versus Goliath characterisation.

"David had five stones but I only need one," she said, comparing the biblical victory to the single lawsuit that she hopes will be decided in favour of Wal-Mart's women employees.

Dukes said that there had been few problems with managers and co-workers since the lawsuit was filed in 2001. She said the work atmosphere got a "little chilly" after courtroom victories were reported in the media.

Seligman said her involvement in the lawsuit may even have benefited her.

"It seems like that at every pivotal moment in the litigation Betty gets a raise."

- AP

© Copyright 2014, APN New Zealand Limited

Assembled by: (static) on production bpcf04 at 29 Dec 2014 00:44:03 Processing Time: 419ms