TOO BIG TO BE SUED? It has been almost a decade since Betty Dukes, a cashier in a Pittsburg, California, Wal-Mart, brought a landmark sex-discrimination lawsuit against her employer. Dukes v. Wal-Mart, the largest civil rights class action in history, alleges that the retail giant discriminated against its female employees in pay, promotions and training. On December 6 the Supreme Court announced that it would hear Wal-Mart’s challenge to the case.
The women of Wal-Mart have never had the opportunity to argue the merits of Dukes in court: they’re still litigating whether the case can proceed as a class action rather than as individual suits by thousands of women. Wal-Mart has relentlessly challenged certification of Dukes, arguing that the class—which has ranged in number from half a million to 1.6 million and will probably keep changing as lawyers squabble over the time frame—is unmanageably large.
Wal-Mart’s “too big to be sued” argument has been rejected four times by judges in the US District and the Ninth Court of Appeals. In a 2004 ruling, federal judge Martin Jenkins pointed out that Title VII, the federal law prohibiting workplace discrimination, “contains no special exception for large employers.”
Still, the Supreme Court’s decision to hear the case isn’t good news for Betty Dukes and her co-workers. Conservatives on the Court are likely to use the case to crack down on large-scale class-action suits. It’s an agenda the business community heartily supports. Wal-Mart has tried hard to portray itself as a friend of the struggling consumer, especially throughout this recession. But a look at the amicus briefs in this appeal shows who the retailer’s real buddies are: the Chamber of Commerce, Bank of America, Microsoft and Altria—all big businesses that would rather not be held accountable for breaking the law. LIZA FEATHERSTONE
NO FAKE NET NEUTRALITY: Barack Obama won the Democratic nomination and presidency as a stalwart defender of net neutrality, the core value of a free and open Internet that says all Americans deserve equal access to all websites. But the man President Obama appointed to chair the Federal Communications Commission, Julius Genachowski, is proposing dumbed-down net neutrality rules that bear scant resemblance to the bold promises of Candidate Obama.
Genachowski’s plan—which he unveiled December 1 and wants the FCC to vote on December 21—neither restores net neutrality as it existed before a Republican-dominated FCC took steps to undermine the principle nor guarantees Internet freedom and flexibility.
An analysis circulated by the Save the Internet Coalition reveals that “the proposed rule is riddled with loopholes and falls far short of what’s necessary to prevent phone and cable companies from turning the Internet into…cable TV: where they decide what moves fast, what moves slow, and whether they can price gouge you or not. The proposal is a shiny jewel for companies like AT&T and Comcast.”
But this fight isn’t over. Genachowski is just one of five FCC commissioners. There is a Democratic majority on the commission, made up of Genachowski; Mignon Clyburn, also an Obama appointee; and Michael Copps, who has served on the commission since 2001. Copps has been a stalwart defender of net neutrality, and Clyburn has tended to side with him on the issue. Even the two Republican commissioners—Robert McDowell and Meredith Baker—have been critical of the tepid initiatives Genachowski proposes.
If Copps and Clyburn object, Genachowski won’t be able to advance what critics decry as “fake net neutrality.” That’s what the Save the Internet Coalition is asking them to do—so that the Internet serves not just the bottom lines of big tele- communications companies but the civic and democratic aspirations of citizens. We don’t have to settle for fake net neutrality. We can have the real thing, and we can realize the full promise of the Internet. JOHN NICHOLS
PROGRESSIVE CAUCUS’S YOUNG GUN: Minnesota Congressman Keith Ellison, one of the most energetic of the younger Democrats in the House, hit the ground running as the new co-chair (with Arizona Congressman Raul Grijalva) of the Congressional Progressive Caucus. As Republicans promoted tax cuts for the rich, Ellison tweeted, “Demanding $700B tax cut for Rich while demanding deficit reduction = eating chocolate layer cake everyday while losing 40 pounds. Dumb!” The Minneapolis Congressman’s pointed under-140-character quip got a lot of attention on Capitol Hill. Ellison promises more tech-savvy rabble-rousing for economic and social justice in his new role. JOHN NICHOLS
ELIZABETH EDWARDS, 1949–2010: Elizabeth Edwards—attorney, healthcare activist and author—died on December 7 at 61, succumbing to cancer after a public battle that inspired many. She was also, of course, the estranged wife of former senator and presidential candidate John Edwards, whose affair with a campaign volunteer and lies about it thrust the Edwardses’ marriage and its eventual breakup into the tabloids. Many Democrats and feminists felt betrayed when it was revealed that Elizabeth Edwards knew of her husband’s affair yet chose to continue campaigning for him in 2008. Dramatizing this difficult and painful contradiction—between outspoken advocate and dutiful wife—is also undeniably one of her legacies.
Melissa Harris-Perry observed at TheNation.com last year when Elizabeth Edwards published a memoir: “She was vilified by some and pitied by others. But more than the personal details of her estrangement, Elizabeth Edwards represents a broader problem of the role of women in American politics…. Elizabeth Edwards was relying on John to make a space for her political work, a way for her ability to impact policy, and a forum for her to use her political voice. When John was silenced she was too. She is trying to reclaim her voice and space in public life…. When political women rely on political men they are vulnerable to men’s choices, particularly their personal and sexual choices. For years I was thinking of Elizabeth as a political resource for her husband, all the time forgetting she was a political resource for the nation. The point was not how Elizabeth helped John get elected, but why it wasn’t Elizabeth all along running for office herself.”