Nearly everyone has chimed in over the oral argument in Wal-mart v. Dukes over the last 36 hours up at the Supreme Court. And nearly everyone seems to be predicting an outright victory to Wal-mart.
Because we don’t even have a decision yet, I’ll leave it to others to prognosticate (read: guess) what will really happen.
But what struck me about the case is not the argument, but the coverage by the press and its adoption of language used by the Plaintiffs, namely that this case is merely about whether the employees can have their "day in court". (The case is about far more than that and whether a 1.5M employee class action is workable.)
Here’s a few pieces of the press coverage:
- (From The Nation:) “We, the women of Wal-Mart, will have our day in court,” Betty Dukes told me almost seven years ago, declaiming from a park bench near her lawyer’s office in Berkeley, California. “[Wal-Mart] will answer our charges—that they have treated us unfairly and we deserved better.”
- (From The Associated Press:) Dukes, 61, the lead plaintiff, said after Tuesday’s arguments that she still believes the justices will allow the case to proceed to trial.
"I’m confident that this case will be judged fairly, and once both the oral and the written arguments are considered, it will be decided that we women, collectively, should have our day in court," she said.
- (From CBS News:) "Remember, it’s not an issue at this point whether or not Wal-Mart actually discriminated," [CBS’s Legal Consultant] Crawford explained. "All the Supreme Court will be deciding is whether these women can come together as a group and take Wal-Mart into court."
A press release issued by one of the parties filing an amicus brief in favor of the employees titled their release "Give Women in Wal-Mart v. Dukes Their Day in Court".
Of course, there is delicious irony in such a statement. After all, the employees are in rarefied air. They actually had their "day in court" — at the U.S. Supreme Court (and at both the District Court and Court of Appeals).
And yet, this rhetoric survives.
Why is this point important for employers?
Because ultimately, as cases progress, employers will have to face this type of rhetoric (whether in settlement conference or a motion for summary judgment) all the time. And employers need to be prepared to respond.
How? In part by saying that the employees are having their day in court and that its up to the courts to decide whether some claims are valid or not. And also explaining that the employee has had an opportunity to be heard (whether through a hearing or even a state fact-finding conference). It also helps to explain that following procedural rules is not pursuing "technicalities" but an essential part of the rule of law.
Having a "Day in Court" rhetoric appeals to a core value of "fairness". The more that employers can understand the appeal of this and be prepared to respond, the better off it will be in the public relations and related court battles.
Stay tuned for the end result of Wal-Mart v. Dukes coming at the end of the Court’s term in June 2011.