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Foundations Weighing Their Options After Wal-Mart Suit

West façade of the Supreme Court Building
West façade of the Supreme Court Building
After loss at Supreme Court, plaintiffs vow to continue fight, while backers consider their next steps

Updated June 21, 2011; 4:38 p.m.

Correction: A previous version of this article inaccurately stated that the Rosenberg Foundation is considering pulling its funding for continued litigation against Wal-Mart and is taking a time out to consider its options. There is still $250,000 allocated by Rosenberg to support gender discrimination litigation that has not yet been spent. The availability of those funds will not be affected by Monday's Supreme Court ruling. Advocates are weighing what strategy to take in response to the Court's ruling. The headline of the story has also been changed to reflect this correction.

A private, San Francisco-based foundation that spent $770,000 in support of the legal battle waged by female employees of Wal-Mart Stores Inc. is weighing its options after the Supreme Court ruled Monday in favor of the big-box retailer.

But Tim Silard, president of Rosenberg Foundation, said his organization will not change its approach until it hears from the non-profits who brought the suit. And the lawyers who brought the class-action sexual discrimination case vowed to continue the fight. "It's not over, not by a long shot," insisted Arcelia Hurtado, executive director of San Francisco-based Equal Rights Advocates, which filed the suit in 2001 and fought the case for an entire decade.

Even so, Silard said the Rosenburg Foundation is keeping its options open.

"We need to know more, the litigators and advocates for the women need to know more before we decide what to do next," Timothy Silard, president of San Francisco's Rosenberg Foundation.

Silard said his foundation has begun planning for "a briefing for other foundations so they can understand what happened and how to move forward."

The historic suit had its roots in the Bay Area. The lead plaintiff in the case, Betty Dukes, works as a greeter at a Walmart in Pittsburg. Christine Kwapnoski, another named plaintiff, is an assistant manager at a Sam's Club in Concord.

The women and their lawyers had hoped the Supreme Court would allow their class-action suit on behalf of as many as 1.5 million female employees to continue. The suit charged that Wal-Mart's compensation and promotion policies and practices discriminated against women.

Dukes told the Court that she earns less than two male greeters at the same store. Kwapnoski said that a manager "told her to 'doll up,' to wear some makeup, and to dress a little better."

But Justice Antonin Scalia deemed those experiences "anecdotes." In the majority opinion, Scalia wrote, that because "pay and promotion decisions at Wal-Mart are generally committed to local managers' broad discretion," plaintiffs could not allege that a culture of discrimination pervaded the company.

Justices Stephen Breyer, Elena Kagan, Sonia Sotomayor and Ruth Bader Ginsburg disagreed. In her dissent, Ginsburg wrote, "The plaintiffs' evidence, including class members' tales of their own experiences, suggests that gender bias suffused Wal-Mart's company culture."

While all of the justices agreed that the suit should not have been allowed to proceed as a class action in its current form, the four dissenting justices argued that the plaintiffs should have been allowed to make their case under a different set of class-action rules.

"The Court, however, disqualifies this class at the starting gate," Ginsburg wrote.

In a statement, Wal-Mart's executive vice president for people, Gisel Ruiz, said the ruling "effectively ends this class-action lawsuit," adding that the company "has a long history of providing advancement opportunities for our female associates and will continue its efforts to build a robust pipeline of future female leaders."


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