Wal-Mart Stores v. Dukes: Lessons for the Legal Quest for Equal Pay

46 Pages Posted: 19 Jan 2012 Last revised: 28 Mar 2014

See all articles by Deborah Thompson Eisenberg

Deborah Thompson Eisenberg

University of Maryland Francis King Carey School of Law

Date Written: 2012

Abstract

The Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes provides a unique opportunity to reflect on whether and how the legal system should address unjustified pay disparities between men and women who perform similar jobs. This Article describes the Court’s decision and analyzes the insights it offers about the legal quest for equal pay. First, Wal-Mart demonstrates the tension between Title VII’s focus on the employer’s intent and the economic realities of how pay discrimination happens in the modern workplace. As the women at Wal-Mart experienced and research confirms, pay disparities tend to be the greatest when employers delegate excessive, unchecked discretion to supervisors. Second, Wal-Mart exemplifies how litigation remedies tend to be ineffective for pay discrimination because of the intent requirement of Title VII, the prima facie standard of substantial equality under the Equal Pay Act, the broad “factor other than sex” defense, and procedural difficulties for group actions.

This Article proposes a blueprint for a more effective remedy for pay discrimination that would: (1) provide incentives for self-regulation by employers, such as pay transparency and periodic compensation audits; (2) limit defenses to those that are job-related and consistent with business necessity; (3) incorporate a pragmatic interpretation of equal work; and (4) facilitate group actions for systemic pay discrimination.

Keywords: Equal Pay Act, pay discrimination, Wal-Mart

Suggested Citation

Eisenberg, Deborah Thompson, Wal-Mart Stores v. Dukes: Lessons for the Legal Quest for Equal Pay (2012). New England Law Review, Vol. 46, p. 229- 2012, U of Maryland Legal Studies Research Paper No. 2012-4, Available at SSRN: https://ssrn.com/abstract=1988257 or http://dx.doi.org/10.2139/ssrn.1988257

Deborah Thompson Eisenberg (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

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