Friday, June 24, 2011

The Class Action Suit Against Wal-Mart and the Struggle for Workers Rights and Gender Equality: Interview with Liza Featherstone and Wal-Mart Worker

An Interview with Labor Journalist and Feminist Author and Activist Liza Featherstone and Wal-Mart employee and plaintiff in landmark lawsuit Stephanie Odle

Democracy Now!
Interviewed by Amy Goodman
Producer & Host

June 21, 2011

1.5 Million Female Wal-Mart Employees Lose Historic Sex Discrimination Case Before Supreme Court

The U.S. Supreme Court has unanimously dismissed the largest class action lawsuit in history filed by 1.5 million current and former female employees of Wal-Mart, who say they were allegedly paid less and promoted less often than their male counterparts. The Court found women who worked at Wal-Mart did not have enough in common to constitute a "class" in a class action lawsuit. It did not address whether Wal-Mart had discriminated against women, but in writing for the minority in part of the court’s ruling, Justice Ruth Bader Ginsburg wrote that the “plaintiffs’ evidence, including class members’ tales of their own experiences, suggests that gender bias suffused Wal-Mart’s company culture." We speak with former Wal-Mart employee Stephanie Odle, one of the original plaintiffs in the case. We also discuss the “limits of a courtroom remedy” in this case, and Wal-Mart’s anti-union efforts with Liza Featherstone, author of "Selling Women Short: The Landmark Battle for Worker’s Rights at Wal-Mart." [includes rush transcript]


Stephanie Odle, former Wal-Mart employee and one of the plaintiffs in the case against Wal-Mart. She filed the gender discrimination claim against Wal-Mart in 1999 that ultimately led to the class action lawsuit.

Liza Featherstone, author of Selling Women Short: The Landmark Battle for Worker’s Rights at Wal-Mart. She continues to write on Wal-Mart for The Nation magazine and many other publications.


“Selling Women Short: The Landmark Battle for Workers' Rights at Wal-Mart,” By Liza Featherstone. (Basic Books, 2004)

AMY GOODMAN: In a unanimous decision, the U.S. Supreme Court has dismissed the largest class action lawsuit in history. The case involves one-and-a-half million current and former female employees of Wal-Mart who filed suit in 2001 saying they were allegedly paid less and promoted less often than their male counterparts. The Court found women who worked at Wal-Mart did not have enough in common to constitute a "class" in a class action suit. It did not address whether Wal-Mart had discriminated against the women.

After yesterday’s ruling, plaintiffs may encounter substantially more difficulty filing class action suits in all manner of cases. The majority opinion from Justice Antonin Scalia raised the threshold of certification: Scalia wrote there must be "glue" holding together the claims of a would-be class.

Responding to the ruling in a press statement, Wal-Mart said, quote, "The court today unanimously rejected class certification and, as the majority made clear, the plaintiffs’ claims were worlds away from showing a company-wide discriminatory pay and promotion policy."

But other parts of the court’s ruling in the Wal-Mart case were more divided. Justice Stephen Breyer and all three female justices — Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — dissented from Scalia’s broader analysis. Writing for the minority, Ginsberg noted women hold 70 percent of hourly paid positions in Wal-Mart stores and just 30 percent of management roles. She wrote, quote, "The plaintiffs’ evidence, including class members’ tales of their own experiences, suggests that gender bias suffused Wal-Mart’s company culture."

The lead attorney for the more than one million female Wal-Mart workers agreed, saying in a statement, quote, "Nothing the Supreme Court has ruled affects the power of the evidence of sex discrimination at Wal-Mart. That evidence is as strong today as it was when it was collected," he said.

To discuss this case, we’re joined from Oklahoma City by the former Wal-Mart employee Stephanie Odle. She is one of the original plaintiffs in the case, filed the gender discrimination claim with the U.S. Equal Employment Opportunity Commission against Wal-Mart in 1999. And we’re joined here in New York by Liza Featherstone, author of Selling Women Short: The Landmark Battle for Workers’ Rights at Wal-Mart. Wal-Mart did not respond to Democracy Now!’s interview request.

Let’s go to Stephanie in Oklahoma City. Can you start by just responding to the Supreme Court decision?

STEPHANIE ODLE: Well, I don’t understand really the legalities of it all, but I know that we’re not done. We’re not going to give up. This is — for me, my daughter was three years old when we started this case, and she’s 14, so, really, all she knows is her mom fights Wal-Mart. So, that’s what we can — are going to continue to do.

AMY GOODMAN: Well, tell me why you brought the original case in 1999, Stephanie.

STEPHANIE ODLE: Myself, personally, I was in nine different clubs in — I think it was nine or 10 different clubs in eight years — I worked for Sam’s Club, a subsidiary of Wal-Mart — and three different states, discriminated against in all of those states, in different regions, different directors. So I know it is systematically — they systematically discriminate.

I was terminated because they wanted to make room for a man that wanted to step down and move back to where I was. He actually said, "Goodbye," on Friday, "I’m going to Lubbock to be the marketing manager." I was the marketing manager. So, that following Monday, they trumped up this charge and terminated me.

I searched for six months before I could find attorneys that would actually take my case. And I was told time and time again, "You can’t take on Wal-Mart. They’re too big. You won’t win. They don’t fight fair. It’ll take too much time. It’ll cost too much money." Finally, I find attorneys in New Mexico that are like, "OK, yeah, come on down." We sit down and talk about it, and they say to me, "You know, Stephanie, you have a great case. We’ll take it. We can go fight it and win, and you’ll be done in a couple of years. However, they won’t change. If we want them to change, and if you want to make a difference, then we need to do a class action." I said, "Well, let’s go. I have a, again, three-year-old. I want to make a difference for her. I want to make this easier for her." So we filed this class action.

And now, 11 years later, yes, the class action is decertified, or however you say it. But I have to know we did make a difference. I did make a change. They did pay attention when we filed this lawsuit. They did start making concessions, changes, promotions, pay scaling, all of this stuff. So, it may, to Wal-Mart, look like they won and we lost, but if you ask me, I did exactly what I set out to do.

AMY GOODMAN: Stephanie, when we just read Ruth Bader Ginsburg, her comments, she didn’t say discrimination doesn’t exist. They decertified the class, but what does that mean for you then? Where will you go from here?

STEPHANIE ODLE: Again, I believe what our plan is, although I’m not on that strategy or whatever it is, that we sue them individually. I think they are looking at smaller classes, or I’m not sure, you know, how they said they could be certified now. But again, I don’t quit. I’m not going to stop. They did discriminate against me. They are going to — the wrong is going to have to be made right.


STEPHANIE ODLE: I can’t change the fact —

AMY GOODMAN: Go ahead, Stephanie.

STEPHANIE ODLE: Oh, sorry. I thought — yeah, I mean, it doesn’t change the fact that — they have done all of these things to correct the wrongs, but it doesn’t change what they did to me. And they discriminated against me, and they will have to answer for that.

AMY GOODMAN: Liza Featherstone is also with us. She’s author of Selling Women Short: The Landmark Battle for Workers’ Rights at Wal-Mart. The significance of this tremendous win for Wal-Mart at the Supreme Court, Liza?

LIZA FEATHERSTONE: It is a win for Wal-Mart, in the sense that, you know, that they don’t have to deal with this massive class action suit. However, Stephanie is absolutely right that it doesn’t change the discriminatory environment at Wal-Mart. And Wal-Mart is quite wrong, as they said in their statement that this ruling somehow affirms that they did not discriminate against women. It does nothing of the kind, as it was never about the merits of the case. It was always about whether it should be certified as a class. And the justices agreed that it couldn’t be in its current form. And as you mentioned, they disagreed about whether it should be sent back to the Ninth Circuit, whether it could be in a — certified if they had followed a different procedure. It was a pretty legalistic matter.

However, yeah, what this means for class actions, generally, it raises the bar. It sets an example, I think, that the corporate — corporate America will be very pleased, because it certainly demonstrates to workers and consumers, if you try to go after a big corporation, you know, look how futile it is. So I think they’re pleased about the demonstration effect. However, I mean, it may turn out to have been — it may turn out to have been somewhat narrow in its actual legal implication.

AMY GOODMAN: So let’s talk about what you have been studying for years. You’ve been looking at Wal-Mart. Your book is called Selling Women Short. Talk about, well, what Ruth Bader Ginsburg also said. Again, it’s very significant. She noted women hold 70 percent of hourly paid positions in Wal-Mart stores, just 30 percent management roles. She wrote, "The plaintiffs’ evidence, including class members’ tales of their own experiences, suggests [that] gender bias suffused Wal-Mart’s company culture."

LIZA FEATHERSTONE: That’s right. I mean, the plaintiffs had a lot of evidence that there was sex discrimination — systematic sex discrimination — at Wal-Mart, which is the whole idea of a class action, is to shed light and change a systematic woe. There were — women were paid less in virtually every single position at Wal-Mart. No matter — no position was too minor to be exempt from sex discrimination. There were very few male cashiers, for instance. Those few were paid better than the female cashiers. It didn’t depend where — what region they were in. This was true all over the country, that women were promoted less easily, less often, despite the fact that the women, overall, had higher performance evaluations and stayed with the company longer, which, you know, certainly, on both counts, should have been in their favor.

You know, and I think Ginsburg pointed to the lack of — you know, many of the personnel policies that contributed to this discrimination, that for many years Wal-Mart didn’t post available job openings in any prominent place — a breakroom and so forth — but you would simply — and I think she quotes this — get a tap on the shoulder by your manager if, you know, presumably he wanted to promote you. And those people that he wanted to promote tended, more often than not, to be men, you know, to be people he was sociable with. So, you know, I think Ginsburg really — she kind of did understand that there was a problem here, and I think that that should be taken seriously.

I think that it’s — the stories that women like Stephanie have are also just extraordinary, and the experiences that those women have had are not changed by this ruling. I mean, Stephanie didn’t mention it, but she found out that she was paid less than a male co-worker when she found his pay stub. And she asked why that was. And, you know, this was when she was pregnant, expecting her first child. And she was told, "Oh, he’s paid more because he has a family to support. He supports his wife and kids." And it’s astounding how many women were given explanations of this nature.

AMY GOODMAN: What is the policy of Wal-Mart towards unions?

LIZA FEATHERSTONE: Absolutely no unions. They will do everything they can to fight them, and they have. There are manuals instructing managers that fighting unions is as important as anything that you do here.

AMY GOODMAN: Stephanie Odle, your experience in working at Wal-Mart, around unions?

STEPHANIE ODLE: Being a manager — I was a manager with Sam’s — I did have to attend those classes that taught us the manuals that Liza is talking about, the "how to avoid the union" manuals, the things that you were supposed to say — "Hey, we’re a family. You know, we don’t need anyone else to talk for us. We have an open door. You come to us. You have a problem, we fix it." These are the things that were ingrained in our head that we tell our hourlies so that they would not seek to have someone else represent them. It was very much a big no-no to have a union.

If there was — I was actually in a "red club," I think it was called, back in 1993 or '4 in California, whenever we bought out a bunch of Costco — Price Club — not Price Club, PACE Clubs, and they turned them into Sam's Clubs. So they were hot clubs with union activity. Well, they sent the most personable, the most engaged managers there that could go around and make sure that they were talking the talk, the "Hey, we’re a family. You don’t need us. What’s your problem? What do you need? What can we do for you?" so that we could divert those unions out of the club.

AMY GOODMAN: Liza Featherstone, the issue of pay and what people are paid, the number of workers on food stamps, etc.?

LIZA FEATHERSTONE: Mm-hmm. Yeah, many workers are on food stamps or other forms of public assistance. In fact, Wal-Mart managers know that and often refer their workers to public assistance or give them the forms to fill out. That’s been well documented in many states. I think in many states Wal-Mart has been, of any private employer, the one with the largest percentage of employees on welfare. You know, and that’s one of the many reasons that many communities are fighting to keep Wal-Mart out. People are still disturbed by the sex discrimination allegations and disturbed by many of the corporate practices. But the wages, absolutely, people are — that’s something that people are very aware of, and people are trying to keep Wal-Mart from expanding into many communities.

AMY GOODMAN: And in terms of Wal-Mart’s political contributions and the political policies they support?

LIZA FEATHERSTONE: Yeah, that’s something, over the years, Wal-Mart has become much more engaged in politics, for many years. You know, I think Sam Walton used to say he didn’t really believe in participating in the political process. That’s completely changed. They’re very engaged. For a number of years, they supported almost entirely Republicans, because they felt that was where they were going to get the most support for anti-union policies, opposition to raising the minimum wage, that kind of thing. But in recent years, they’ve begun to support Democrats a lot more, in an attempt to garner support on both sides of the aisle. And their philanthropy has been in very liberal realms, as well. And it’s kind of a part of a process of hoping to win the rest of America over, so that they don’t — and they don’t want to just be a conservative red state company. So, you know, the lawsuit has been a big remaining obstacle for them in that ideological battle.

AMY GOODMAN: We’re talking about legal strategy here, and we’re talking about a major win for Wal-Mart at the Supreme Court. But there are a number of campaigns that are building around Wal-Mart. Can you talk about the efforts of the United Food and Commercial Workers?

LIZA FEATHERSTONE: Sure. There’s a real resurgence by the United Food and Commercial Workers to promote public awareness of Wal-Mart’s practices, in the ultimate hope of changing them. That’s been focused in a variety of ways. One has definitely been site battles, efforts to prevent more Wal-Marts from opening, particularly in New York, Washington, D.C., places where the retailer has historically been a little scarce. So the union is really focusing a lot of effort on that. And those very well might be successful. They often have been in the past, those efforts, because they really — brings the community together, brings a wide coalition of people who say, "Look, this retailer is just not ready for our city yet, or our neighborhood. We need to see better practices."

AMY GOODMAN: In terms of legal issues, the New York Times reporting the plaintiffs’ lawyers are still seeking complaints from female Wal-Mart employees who have been denied equal pay or promotion at the website And so, we will continue to follow this story at every level. Thank you very much, Liza Featherstone. Her book is called Selling Women Short: The Landmark Battle for Workers’ Rights at Wal-Mart. And Stephanie Odle, joining us from Oklahoma, former Wal-Mart employee, one of the original plaintiffs in the case against Wal-Mart, filed the gender discrimination claim against Wal-Mart back in 1999 that ultimately led to the class action lawsuit, the lawsuit that was thrown out by the U.S. Supreme Court yesterday.

The Class Action Suit Against Wal-Mart and the Struggle for Workers Rights and Gender Equality

Labor Journalist, Activist, and Author Liza Featherstone


'Dukes v. Wal-Mart' and the Limits of Legal Change
by Liza Featherstone
June 20, 2011
The Nation

The Supreme Court yesterday unanimously slapped down the largest civil rights class action suit in history—on a dry technicality. Justices agreed that Dukes v. Wal-Mart, the ten-year-old sex discrimination lawsuit, should not proceed as a class action because the lower courts had not followed proper procedure in certifying it. While the Court’s decision is discouraging, no one should imagine that it represents an end to the fight for justice at Walmart.

Dukes represents an effort to redress a massive pattern of inequity at the nation’s largest private employer. Women were paid less than men in just about every position at the company, and promoted into management at far lower rates, despite higher performance evaluations than their male colleagues. No position was too minor to be exempt from male privilege—there were very few male cashiers, for instance, but those few were paid better than female cashiers. Departments were segregated, with women selling baby clothes and men selling electronics, and the predominantly male departments paid better. (Plaintiff Cleo Page was told that customers would feel more “comfortable” buying sports equipment from a man.) Lower courts had ruled that Dukes should proceed as a class action, and even Walmart’s own lawyers had urged the company to settle, but the company was determined to keep fighting all the way to the Supreme Court—and obviously, had the resources to do so.

The Supreme Court ruling is a big victory for Walmart, for large corporations everywhere hoping not to be sued, and, not least, for right-wing ideologues who hate to see the free market gummed up with disputes over fairness and social justice.

It’s a devastating defeat for the women who have spent years of their lives trying to change Walmart through this lawsuit. Women like Betty Dukes, the lead plaintiff, a pastor in her Pittsburg, California church who has been telling her “David and Goliath” story to her congregation for years, hoping to inspire them to stand up to injustice in their own lives. Women who were given such astounding explanations for the inequality right before their eyes: Kathleen Macdonald, a clerk in Aiken, South Carolina, found out that her male co-workers were paid better—it was no secret, she says, “They bragged about it!”—and when she asked why, was told by her supervisor that “God made Adam first.” He did feel that some men take this prerogative to “an extreme—when they beat their women.”

The decision is also a defeat for workers and consumers everywhere who might have a beef with a large corporation—as it certainly sends the message that this sort of fight is getting tougher and tougher to win. It’s particularly dispiriting as a measure of our shared values: conservatives like Scalia were expected to back Walmart, but even the supposed “liberals” on the court ultimately decided that business interests should trump the rights of workers.

But it’s not yet clear how definitive a defeat it is—while the justices all agreed that Dukes should not be certified, they disagreed on why. Justice Ginsburg argued in a partial dissent that Dukes could potentially have been certified if the lawyers had taken a slightly different strategy, and she disagreed with some of the majority’s most extreme contentions (like the ideas that there was no basis for a class action since Walmart had no specific written policy discriminating against women—a bar so high that few class actions would ever reach it). More importantly, though, the Dukes ruling underscores the need for more and better organizing by workers and citizens. Change cannot come from the courtroom alone.

Intriguingly, the ruling comes amidst an impressive resurgence of organizing aimed at changing Walmart. The United Food and Commercial Workers (UFCW), along with citizens in urban communities all over the country, has been working tirelessly to block the retailer’s plans to take over large cities like New York, Washington and Philadelphia. Far more prominent in these fights than ever before are the people who should have been in the forefront all along: Walmart workers, some of whom have been speaking out against their employer in public hearings and at demonstrations. The UFCW has started a group called Wal-Mart Workers for Change, a workers’ center through which Walmart workers can organize and pressure the company for better wages and working conditions without—prematurely—enduring grueling and costly battles for official union recognition.

Women—whether or not we work at Walmart—are furious about this Supreme Court ruling. Imagine if the UFCW campaign tapped into the outrage of women all over the country. For a company already economically vulnerable—after all, in these tough economic times, the poor people that traditionally made up its customer base can no longer afford to shop at Walmart—some serious political opposition, and consumer disgust, might hurt even more than a lawsuit. It’s time to stop depending on the legal system alone.

Liza Featherstone
The Nation

Liza Featherstone is a journalist based in New York City. Her work on student and youth activism has been published in The Nation, Lingua Franca, the San Francisco Bay Guardian, Left Business Observer, Dissent, The Sydney Morning Herald and Columbia Journalism Review. Featherstone has also written for the New York Times, the Washington Post, Newsday, In These Times, Ms., Salon, Nerve, US, Nylon and Rolling Stone. She is the co-author of Students Against Sweatshops: The Making of a Movement (Verso, 2002) and author of Selling Women Short: The Landmark Battle for Worker's Rights at Wal-Mart (Basic, 2004).

Tuesday, June 21, 2011

U.S. Supreme Court Rules in Favor of Gender, Racial, and Labor Discrimination in Landmark Class Action Case Against Wal-Mart

Larry Downing/Reuters
Betty Dukes, a plaintiff in the case against Wal-Mart, at the Supreme Court on March 29.


This vicious and heinously sexist, racist, and anti-labor decision handed down by the most egregiously corporate and reactionary rightwing Supreme Court of the past 100 years is yet another howling public example of just how quickly and brutally this country is actually moving toward fascism. From "Bush v. Gore" which stole the presidential election for George W. Bush in 2000 to the brazenly pro-corporate and thoroughly anti-democratic vote in the infamous "Citizens United" case of 2009 (yet another ideologically driven 5-4 vote for the Scalia-Thomas-Alito-Roberts wing of openly rightwing legal gangsters!), this decision means that there is now absolutely NO LEGAL RECOURSE WHATSOEVER left for anyone from the poor, working, and middle class (and this goes especially for all people of color and women generally) to receive even a modicum of real justice against blatant sexual, racial, and labor discrimination and exploitation in the U. S. legal system. NONE! Revolution, anyone?...


Justices Rule for Wal-Mart in Class-Action Bias Case
Published: June 20, 2011
New York Times

WASHINGTON — The Supreme Court on Monday threw out an enormous employment discrimination class-action suit against Wal-Mart that had sought billions of dollars on behalf of as many as 1.5 million female workers.

A Death Blow to Class Action?

By siding with Wal-Mart, the Supreme Court has signaled that it wants job bias disputes handled in the workplace, not the courts.

The suit claimed that Wal-Mart’s policies and practices had led to countless discriminatory decisions over pay and promotions.

The court divided 5 to 4 along ideological lines on the basic question in the case — whether the suit satisfied a requirement of the class-action rules that “there are questions of law or fact common to the class” of female employees. The court’s five more conservative justices said no, shutting down the suit and limiting the ability of other plaintiffs to band together in large class actions.

The court was unanimous, however, in saying that the plaintiffs’ lawyers had improperly sued under a part of the class-action rules that was not primarily concerned with monetary claims.

Business groups welcomed the decision, and labor and consumer groups strongly criticized it. But all agreed it was momentous.

“This is without a doubt the most important class-action case in more than a decade,” said Robin S. Conrad, a lawyer with the litigation unit of the United States Chamber of Commerce, the business advocacy group.

The court did not decide whether Wal-Mart had, in fact, discriminated against the women, only that they could not proceed as a class. The court’s decision on that issue will almost certainly affect all sorts of other class-action suits, including ones brought by investors and consumers, because it tightened the definition of what constituted a common issue for a class action and said that judges must often consider the merits of plaintiffs’ claims in deciding whether they may proceed as a class.

“You will have people invoking the decision in lots of different cases,” said Brian T. Fitzpatrick, a law professor at Vanderbilt University specializing in class-action law. “The Supreme Court has said that it’s O.K. to look at the merits of the lawsuit to decide whether to allow it to go forward at the earliest possible moment.”

Justice Antonin Scalia, writing for the majority, said the women suing Wal-Mart could not show that they would receive “a common answer to the crucial question, why was I disfavored?” He noted that the company, the nation’s largest private employer, operated some 3,400 stores, had an expressed policy forbidding discrimination and granted local managers substantial discretion.

“On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action,” Justice Scalia wrote. “It is a policy against having uniform employment practices.”

The case involved “literally millions of employment decisions,” Justice Scalia wrote, and the plaintiffs were required to point to “some glue holding the alleged reasons for all those decisions together.”

The plaintiffs sought to make that case with testimony from William T. Bielby, a sociologist specializing in social framework analysis.

Professor Bielby told a lower court that he had collected general “scientific evidence about gender bias, stereotypes and the structure and dynamics of gender inequality in organizations.” He said he also had reviewed extensive litigation materials gathered by the lawyers in the case.

He concluded that Wal-Mart’s culture might foster pay and other disparities through a centralized personnel policy that allowed for subjective decisions by local managers. Such practices, he argued, allowed stereotypes to sway personnel choices, making “decisions about compensation and promotion vulnerable to gender bias.”

Justice Scalia rejected the testimony, which he called crucial to the plaintiffs’ case.

“It is worlds away,” he wrote, “from ‘significant proof’ that Wal-Mart ‘operated under a general policy of discrimination.’ ”

Nor was Justice Scalia impressed with the anecdotal and statistical evidence offered.

One of the plaintiffs named in the suit, Christine Kwapnoski, had testified, for instance, that a male manager yelled at female employees but not male ones, and had instructed her to “doll up.” Justice Scalia said that scattered anecdotes — “about 1 for every 12,500 class members,” he wrote — were insignificant.

He added that statistics showing pay and promotion gaps between male and female workers were insufficient to show common issues among the plaintiffs, because discrimination was not the only possible explanation. “Some managers will claim that the availability of women, or qualified women, or interested women, in their stores’ area does not mirror the national or regional statistics,” Justice Scalia wrote. “And almost all of them will claim to have been applying some sex-neutral, performance-based criteria — whose nature and effects will differ from store to store.” Joseph M. Sellers, a lawyer for the plaintiffs, said the majority had “reversed about 40 years of jurisprudence that has in the past allowed for companywide cases to be brought challenging common practices that have a disparate effect, that have adversely affected women and other workers.”

A lawyer for Wal-Mart, Theodore J. Boutrous Jr., said the decision was “an extremely important victory not just for Wal-Mart but for all companies who do business in the United States, large and small, and their employees, too.”

Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined Justice Scalia’s majority opinion on the broader point. But the court unanimously rejected the plaintiffs’ effort to proceed under a part of the class-action rules concerned mainly with court declarations and orders as opposed to money, one that did not require notice to the class or provide the ability to opt out of it.

Justice Ruth Bader Ginsburg, joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, dissented in part. Justice Ginsburg said the court had gone too far in its broader ruling in the case, Wal-Mart Stores v. Dukes, No. 10-277.

She would have allowed the plaintiffs to try to make their case under another part of the class-action rules. “The court, however, disqualifies the class at the starting gate” by ruling that there are no common issues, she wrote.

She added that both the statistics presented by the plaintiffs and their individual accounts were evidence that “gender bias suffused Wal-Mart’s corporate culture.” She said, for instance, that women filled 70 percent of the hourly jobs but only 33 percent of management positions and that “senior management often refer to female associates as ‘little Janie Qs.’ ”

“The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects,” she wrote. “Managers, like all humankind, may be prey to biases of which they are unaware.”

Stephanie Clifford contributed reporting.

HAPPY BIRTHDAY ERIC: A TRIBUTE TO ERIC DOLPHY, 1928-1964--Multi-instrumentalist, Composer, Artist

ERIC DOLPHY, 1928-1964

"Whatever I'd say would be an understatement. I can only say my life was made much better by knowing him. He was one of the greatest people I've ever known, as a man, a friend, and a musician." – John Coltrane on Eric Dolphy

“When you hear music, after it's over, it's gone, in the air. You can never capture it again.” – Eric Dolphy

"I'm leaving to live in Europe. Why? Because if you try to do something new and different in this country (the U.S.) people put you down for it."
--Eric Dolphy (6 months before his death in 1964)

In only thirty six years (1928-1964) Eric Dolphy was able to leave a legacy as one of the most unique and influential artists in Jazz. Today we pay tribute to the amazing life and extraordinary music of a true master on his 83rd birthday.

Happy Birthday Eric Dolphy!

Eric Allen Dolphy, Jr. was born on June 20, 1928 in Los Angeles, California. Eric began playing music on harmonica in elementary school before exploring other instruments. Dolphy also sang in the choir at his local church as a child led by Reverend Dr. Hampton B Hawes, the father of Eric’s childhood friend and later legendary Jazz piano player Hampton Hawes. By the time Dolphy was in middle school he won a two year scholarship to the U.S.C. School of Music in a city wide competition but didn’t need it as he would be playing professionally in high school. Eric also did chores for music teacher Lloyd Reese in exchange for lessons and after high school would continue his studies for a short time at Los Angeles City College while gigging locally. He was able to play and perform on alto saxophone, baritone saxophone, bass clarinet and flute. After entering the army and the U.S. Naval School of Music, Dolphy returned home in 1953 and began playing with George Brown, Gerald Wilson and Buddy Collette. Collette suggested to Eric that he make his way to New York and join Chico Hamilton and he did.

In New York Eric would play with just about every legendary Jazz musician in the area. In 1960 he recorded on Ornette Coleman’s album ‘Free Jazz’ as well as played with Freddie Hubbard, Don Cherry, Charlie Haden, Scott LaFaro, Billy Higgins, Max Roach, Oliver Nelson and Eddie Blackwell among others. Dolphy toured and performed with John Coltrane in ’61 and ’62 contributed to Trane’s albums ‘Africa Brass’, ‘Impressions’, ‘Live at the Village Vanguard’ and ‘Ole’. Also in the early 1960s Eric performed and became close with Charles Mingus and some of those classic albums they made together include ‘Mingus!’, ‘Charles Mingus Presents Charles Mingus’, ‘Mingus at Antibes’, ‘The Town Hall Concert’, ‘Revenge!’ and more.

Dolphy also performed and recorded extensively as a leader and his first albums include ‘Out There’, ‘Outward Bound’, ‘Far Cry’ with Booker Little and ‘Magic’ all recorded in 1960 among even more that year. Some other notable albums Eric recorded as a leader includes ‘Here and There’ and ‘Live! At the Five Spot’ in 1961 as well as ‘The Illinois Concert’ in 1963 and ‘Out to Lunch!’ with Freddie Hubbard, Bobby Hutcherson, Richard Davis and Tony Williams in 1964. Eric left on a European tour with Mingus in early 1964 planning to settle down there with his fiancé after the tour. However, in June 1964 Dolphy suffered a stroke from undiagnosed diabetes and passed away in Berlin at just thirty six years old. That same year Eric was inducted in Down Beat Magazine’s Hall of Fame.

Eric Dolphy’s short life did not prevent him from leaving a legacy as one of the most unique and influential voices in Jazz history. Dolphy was one of the first important bass clarinet players in Jazz as well as one of the most influential flautists. Even with contributions on those instruments he is best known as being one of the greatest alto saxophone players in this music. Eric’s way of living, music and style of play continues to influence and inspire young musicians today to explore themselves and the unknown through their music and find their own voice.

"Whatever I'd say would be an understatement. I can only say my life was made much better by knowing him. He was one of the greatest people I've ever known, as a man, a friend, and a musician." – John Coltrane on Eric Dolphy

“When you hear music, after it's over, it's gone, in the air. You can never capture it again.” – Eric Dolphy