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Rough justice, indeed, for Wal-Mart

Former EEOC general counsel Eric Dreiband (now with Akin Gump), on the sex discrimination case of Dukes v. Wal-Mart, in today's W$J:

The Civil Rights Act of 1991 permits each victim of unlawful discrimination to recover damages of up to $300,000. The plaintiffs seek punitive damages of between $450 and $510 billion (1.5 to 1.7 million women times $300,000). In order to shoehorn the case into a class action, their lawyers argue that money is "incidental" and "secondary." In other words, the Dukes plaintiffs seek, literally, a half a trillion dollars in punitive damages alone while their lawyers contend that money is something of an afterthought.

The Civil Rights Act also authorizes compensatory damages for victims of unlawful discrimination. The plaintiffs in Dukes decided not to seek compensatory damages: To do so would render the case inappropriate as a class action because compensatory damage awards depend upon injuries suffered by individuals, not classes of individuals. Any actual victim of sex discrimination by Wal-Mart will lose her claim to compensatory damages unless she hires a lawyer to file papers in the San Francisco court and "opts out" of the case....

This kind of "rough justice," under which any real victim loses her right to bring her own case for real justice while the lawyers become wealthy and move on to their next class action, makes a mockery of the civil rights laws.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.