Senior Power: Happy Birthday, Betty Dukes

By Helen Rippier Wheeler
Thursday October 13, 2011 - 01:55:00 PM

Sex and gender are frequently-considered factors in employment. Sex is the biological status of the person; gender is the cultural notion of what it is to be a woman or a man, girl or boy. “Gender” has become standard usage, as if some people are unable to say the S word. 

Title VII of the Civil Rights Act of 1964: Equal Employment Opportunity prohibits discrimination based on race, color, religion, sex, or national origin. An employer who intentionally deprives a member of one or more of these classes from equal employment opportunities, is committing an unlawful act. It is very difficult for an employee to prove that the discrimination was intentional. 

In sex-and-age claims of discrimination in employment made by midlife and older women, plaintiffs are likely to hold professional, specialty or managerial positions. This might mean that midlife and older professional women are the most likely to be discriminated against based on their sex-and-age. Or, it might mean that professional women are the most likely to complain and to have the resources to pursue legal redress. 

Practices often challenged are those in which the employee either lost her job or lost a promotion. Facts may be relatively straightforward, e.g. an older woman is pushed out for “poor performance” after years of good evaluations, or a midlife woman is passed over for promotion in favor of a younger man. 

Midlife and older women may face discrimination on the basis of physical appearance, e.g. when employers prefer “attractive” women for jobs and equate women’s attractiveness with youth. In general, plaintiffs fare poorly when challenging defendants’ discrimination against women, especially older women, on the basis of physical appearance. This may be due in part to courts’ difficulty in understanding the combined effects of sex-and-age discrimination and how such discrimination can play out in stereotypes about physical attractiveness. Many age-related disabilities are caused by diseases that disproportionately affect older women, e.g. osteoporosis. 

In certain situations plaintiffs may have claims under some combination of three statutes: Title VII, ADEA, and ADA.  

The Age Discrimination in Employment Act of 1967 (ADEA) forbids employment discrimination against anyone over the age of forty in the United States. In Kimel v. Florida Bd. of Regents, the U.S. Supreme Court held that the ADEA did not apply to employment practices of state governments. Note, however, that the EEOC states on its web site that the ADEA does apply to state and local governments. 

The Americans with Disabilities Act (ADA) is a law that was enacted by the U.S. Congress in 1990, later amended with changes effective January 1, 2009. The ADA is a wide-ranging civil rights law that prohibits, under certain circumstances, discrimination based on disability. It affords similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964, which made discrimination based on race, religion, sex, national origin, and other characteristics illegal. Disability is defined by the ADA as "a physical or mental impairment that substantially limits a major life activity." The determination of whether any particular condition is considered a disability is made on a case by case basis, which has its drawbacks. Certain specific conditions are excluded as disabilities, e.g. current substance abuse and visual impairment correctable by prescription lenses. 


Midlife and older women may face employment discrimination solely because of their age, solely because of their sex, because of their age and sex separately (e.g. where an employer discriminates against older people in hiring decisions and also against women in pay) and because of the combination of their age-and-sex, e.g. when an employer will hire younger women or older men, but not older women.  

Rollins v. TechSouth, Inc. is a common scenario. Plaintiff presented evidence that could support a combined sex-and-age claim-- her supervisor’s comment that he didn’t like working with older women and that she looked good for her age, and evidence that she had been replaced by a younger man. But the court evaluated her claims of sex-and-age discrimination as completely distinct from one another. In most decisions, sex discrimination and age discrimination claims are treated as distinct and separate claims. Some courts recognize that older women make up a discrete protected subclass under relevant antidiscrimination laws. (I’m just not aware of any.) Cases refusing to recognize older women as a protected subclass have counterparts in the race-and-sex area. 

Dukes v. Wal-Mart Stores, Inc., a sexual discrimination lawsuit, was the largest civil rights class action in United States history. It charged Wal-Mart with discriminating against women in promotions, pay, and job assignments in violation of Title VII of the Civil Rights Act of 1964. The case started in 2000. Fifty+ years old Betty Dukes, a Wal-Mart worker in California, filed a sex discrimination claim against her employer. She has been compared to Rosa Parks. 

Dukes claimed that, despite six years of hard work and excellent performance reviews, she was denied the training she needed to advance to a higher salaried position. Wal-Mart's position was that Dukes clashed with a female Wal-Mart supervisor and was disciplined for admittedly returning late from lunch breaks. In 2007, the case received district court class action certification, which was disputed by Wal-Mart. In 2009, the Ninth Circuit granted Wal-Mart's petition for rehearing on the class action certification; as a result, the December 2007 Ninth Circuit opinion was no longer effective. 

The U.S. Supreme Court in June 2011 rejected an effort on behalf of as many as one million female workers to sue Wal-Mart for discrimination, ruling in Wal-Mart's favor, saying the plaintiffs did not have enough in common to constitute a class. Filed in 2001, the suit aimed to cover every woman who worked at the retailer’s Wal-Mart and Sam’s Club’s stores at any point since December 1998, including those not hired until years after the suit was filed. The justices said the lawyers pressing the case failed to point to a common corporate policy that led to gender discrimination against workers at thousands of stores across the country. The court ruled unanimously that, because of the variability of plaintiffs' circumstances, the class action could not proceed as comprised and that it could not proceed as any kind of class action suit. 


Girls and women who step out of the role society assigns them can expect to become engulfed in a delay, divide, discredit syndrome. If a woman is emotionally and financially able to respond to discrimination based on her sex/gender, whether in academe, government, the public sector or home, she must survive while the defendant's firm of attorneys delays the investigation and trial. The defendant is often able to divide other victims and potential members of the class. If a plaintiff is able to get into court, she and any witnesses are subject to discredit. Myths and assumptions surround these heroes for the rest of their lives. Motivations may be endlessly attributed. Potential employers are especially wary of workers who are plaintiffs in class action suits. Many plaintiffs and witnesses who are former Wal-Mart employees have had trouble finding jobs. 

In September 2011, three months after winning dismissal of the gender-bias case from the U.S. Supreme Court, Wal-Mart Stores Inc., the world’s largest retailer and private employer, unveiled a multibillion-dollar “women’s initiative.” The plan includes buying $20 billion of products from U.S. female-owned businesses in the next five years, training women to work in factories and retail worldwide, and providing $100+ million in grants to non-profit organizations aiding women. “We’re stepping up our efforts to help educate, source from and open markets for women around the world,” declared CEO Mike Duke. National Organization for Women (NOW) President Terry O'Neill, on ABC World News Tonight with Diane Sawyer, spoke about Wal-Mart’s multibillion-dollar initiative to purchase products from women-owned businesses: "I'm completely underwhelmed. This is a company that has systematically discriminated against women. And they think they can evade responsibilities, simply by a PR stunt."  

“The Wal-Mart public-relations machine is spinning overtime on this,” commented Wall Street Strategies analyst Brian Sozzi. “They are doing their best job to try and get out in front of any potential future lawsuits, while at the same time appear better in the cases remaining.” A Wal-Mart company spokesperson declared that increased support for women-owned suppliers was not related to the lawsuit. 

Wal-Mart may still face smaller gender discrimination lawsuits in lower courts and claims with the U.S. Equal Employment Opportunity Commission (EEOC). 

When Betty Dukes charged female sex-discrimination in employment class action, she was middle-aged. Now she is a senior citizen.  


Featherstone, Liza. (1969- ). Selling Women Short: The Landmark Battle for Workers' Rights at Wal-Mart. 2004. Contends that Wal-Mart's success is based not only on its inexpensive merchandise or its popularity but also on bad labor practices. She repeated this charge in an article in The Nation

DeBeauvoir, Simone (1908-1986). The Coming of Age. 1970. 

“As a personal experience old age is as much a women’s concern as a man’s—even more so, indeed, since women live longer. But when there is speculation upon the subject, it is considered primarily in terms of men. In the first place, because the struggle for power concerns only the stronger sex.” 

Sontag, Susan (1933-2004). “The Double Standard of Aging,” Saturday Review Sept. 23, 1972, volume 55, pp. 29-38. Reprinted in, among other sources, The other within us: feminist explorations of women and aging, edited by Marilyn Pearsall. 1997.  


Older Americans are working longer. The labor force participation among those over age 65 has gone up dramatically in recent years. In 2010, more than 17% of those over 65 were in the labor force, up from around 11% in 1985. According to a 2011 analysis from the Urban Institute, adults age 50 and over comprised 31% of the labor force in 2010, up from 20 percent in 1995. 

Open enrollment for Medicare Part D prescription drug plans starts on Oct. 15 and ends Dec. 7. Visit the National Council on Aging at My Medicare for guidance, as well as details on two programs that can make Medicare more affordable for low-income seniors. If you don’t use a computer, call 1-800-Medicare. Note: The 2012 Medicare & You official U.S. government Medicare handbook is being distributed; it is also online. The chart starting on page 147 is the best source of Prescription Drug Plans information. 

A new study finds that dietary supplements may harm older women. Researchers say that iron, vitamin B6 and others might increase the risk of death. The full report was published in the Oct. 10 issue of the Archives of Internal Medicine. And I’ll add magnesium. Brown University researchers report that the percentage of nursing home residents in the United States who receive a seasonal flu shot is lower than the national goal, and that the rate is lower for blacks than for whites. Both are online at October 5 and 10, 2011 HealthDay. 


MARK YOUR CALENDAR: Be sure to confirm. Readers are welcome to share by email news of future events that may interest boomers, seniors and elders. Daytime, free, and Bay Area events preferred.  


Thursday, Oct. 13. 10 A.M. Computers for Beginners. Central Berkeley Public Library. 2090 Kittredge. 510-981-6100. Also Oct. 20 and 27. 

Thursday, Oct. 13. 10:30 A.M. New Member Orientation & YOU! Mastick Senior Center, 1155 Santa Clara Avenue, Alameda. Guided tour outlining the various activities, programs, and services, and a coupon to enjoy a complimentary lunch provided by Bay Area Community Services (BACS)! Reserve by visiting the Mastick Office or calling 510-747-7506. 

Friday, Oct. 14. 12:15 P.M. Free. Berkeley Brass Quintet concert. UC,B Hertz Hall. 


Saturday, Oct. 15. 11 A.M. Landlord/Tenant Counseling. Central Berkeley Public Library. 510-2090 Kittredge. 510- 981-6100. 

Monday, Oct. 17. 9:30 A.M.- 12:30 P.M. Beaded Jewelry Making. Rose O’Neill, Custom Jewelry Designer. Beads and tools will be supplied unless you would like to go “green” and redesign beads already in your possession. Limited to 10 students. $15 per person. Mastick Senior Center, 1155 Santa Clara Avenue, Alameda. 510-747-7506. (Also Mondays, Nov 21 and Dec 19.) 

Monday October 17. 12:30 PM - 1:30 PM Albany YMCA/Albany Library Brown Bag Lunch Speaker's Forum: Fred Setterberg, Lunch Bucket Paradise has been described as "postwar dreams of a working-class California suburb, and the struggles—comic, tragic, and triumphant—of those who came of age in that time and place.”Contact Ronnie Davis 510-526-3720 x16 

Monday, Oct. 17. 2 P.M.-3:30 P.M. Queue Rolo, M.A., M.S., Museum Studies, SFSU, will present “W.A.Leidesdorff: America’s 1st Black Millionaire.” Free for OLLI and Mastick Senior Center members. MastickSenior Center, 1155 Santa Clara Avenue, Alameda. 510-747-7506. 

Tuesday, Oct. 18. 12:30 P.M. San Francisco Gray Panthers General Meeting: Program to be announced. Location: Fireside Room, Unitarian Center, 1187 Franklin St. at Geary, # 38 bus. 415-552-8800., 

Wednesday, Oct. 19. 12:15 P.M. – 1 P.M. Noon Concert Series Performing Arts - UC,B Hertz Concert Hall. University Gospel Chorus - Another Day's Journey. Tickets not required. 510-642-4864. 

Wednesday, Oct. 19. 1:30 P.M. Alameda County Library San Lorenzo branch, 395 Paseo Grande. 510-670-6283. Social Security Administration Public Affairs Specialist Mariaelena Lemus will address older adults’ questions and present information specifically for them. Program repeats at other branches through December. No reservations required. Free. Library Older Adult Services at 510-745-1491. 

Wednesday, Oct. 19. 7 P.M. – 8 P.M. The Bookeeper’s Apprentice, by Laurie R. King. Book discussion. Alameda County Library Albany Branch, 1247 Marin Av. 510-526-3720. (On Sunday, Oct. 23 @ 2 PM, the author will read and speak. Albany Community Center.)  

Thursday, Oct. 20. 6 P.M. Lawyers in the Library. Berkeley Public Library West branch. 1125 University. 510-981-6270. Also Oct. 27. 

Sunday, Oct. 23. 2 P.M. – 3 P.M. The Albany Library (1247 Marin Av.) presents Laurie King, the author of Albany Reads book, The Beekeeper’s Apprentice. Community Center Hall. 510-526-3720.
Mondays, Oct. 24, 26 and 31. 10A.M. – 12 Noon. Oliver Guinn, Ph.D Economics, returns to teach “Our Damaged Economy: The Financial Meltdown and Economic Inequality.” Free. Mastick Senior Center, 1155 Santa Clara Avenue, Alameda. 510-747-7506. 

Tuesday, Oct. 25. 1 P.M. AC Transit and YOU! Representatives from United Seniors of Oakland and Alameda County will inform about the Regional Transit Connection (RTC) Discount Card Program and the Clipper Card, route changes, and the 10-year AC Transit Fare Policy. Refreshments. Free. MastickSenior Center, 1155 Santa Clara Avenue, Alameda. 510-747-7506. 

Tuesday, Oct. 25. 3 - 4 P.M. Tea and Cookies. Central Berkeley Public Library. A book club for people who want to share the books they have read. Central Berkeley Public Library. 2090 Kittredge. 510-981-6100. 

Wednesday, Oct. 26. 12:15 P.M. – 1 P.M. Noon Concert Series Performing Arts - UC,B Hertz Concert Hall. Tony Lin, piano. Tickets not required. 510-642-4864. 

Wednesday, Oct. 26. 1 P.M. Berkeley Gray Panthers meets at North Berkeley Senior Center, 1901 Hearst, corner of MLK. Free. 510-548-9696. 

Wednesday, Oct. 26. 1:30-2:30 P.M. Alameda County Library Albany branch. 1247 Marin Av. Great Books Discussion Group. Roman Fever, Edith Wharton short story. Facilitated discussion. Books available at the Library. Parking! 510-526-3720 x 16. 

Wednesday and Thursday, Oct. 26/Sacramento and 27/South San Francisco, 2011 .  

"Dementia Care Without Drugs - A Better Approach for Long-term Care Facilities" symposia about misuse of psychotropic drugs as treatment for dementia, difficulty in managing dementia treatment, and non-pharmacological approaches to care. CANHR staff attorney Tony Chicotel presentation, "Stop Drugging Our Elders!" California Advocates for Nursing Home Reform 415-974-5171. Fax 415-777-2904. 

Thursday, Oct. 27. 12:30 P.M. Celebrating a birthday in October? Cake, music, 

balloons, and good cheer. Mastick Senior Center, 1155 Santa Clara Avenue, Alameda. . 510-747-7506. 

Thursday, Oct. 27 1 P.M.- 3 P.M. Fall Dance…Halloween Stomp. Come in costume 

to be eligible for “best costume award”, enjoy door prizes, and refreshments. Volunteers enter free with volunteer badge. Cost is $2.00 per person. . Mastick Senior Center, 1155 Santa Clara Avenue, Alameda. . 510-747-7506. 

Thursday, Oct. 27 1:30 P.M. Music Appreciation with William Sturm, Volunteer Instructor. Piano recital and discussion on “The Sceptered Isle: Music of England”. Mastick Senior Center, 1155 Santa Clara Avenue, Alameda. 510-747-7506. 

Saturday, Oct. 29. 12:15 P.M. Halloween Bingo Bash. Patrons will receive a free Halloween dauber (ink marker) compliments of Center Advisory Board and Bingo Committee. Doors open at 10:00 a.m. with the first game at 12:15 P.M. 18 years of age+ are welcome. Mastick Senior Center, 1155 Santa Clara Av. 510-747-7506. 


Tuesday November 1. 12:00 PM - 2:00 PM League of Women Voters. Albany Library, 1247 Marin Av. Contact: Ronnie Davis 510-526-3720 X16 The League of Women Voters invites you to join them. 

Wednesday, November 2. 1 P.M. Mastick Book Club members review Mastick Senior Center, 1155 Santa Clara Av., Alameda. One Day by David Nicholls will be reviewed. 510-747-7506, -7510. Free. 

Wednesday, November 2. 6-8 P.M Lawyer in the Library. Free. Albany Library. 1247 Marin Av. 510-526-0660 

Wednesday, Nov 2. 7 P.M. Democracy For America Meetup – Pizza 6:30 P.M., Presentation at 7:00 P.M. Rockridge Library, 5433 College Ave, Oakland. . Cindy Young, Statewide Campaign Coordinator for the California Single Payer Coalition, will explain how the California Universal Health Care Act, SB810 will affect you and how to support its passage. Co-sponsored with the Wellstone Democratic Renewal Club. Contact Nancy M. Friedman at 

Thursday, November 3. 1:30 P.M. SOCIAL SECURITY & MEDICARE. Albany branch of the Alameda County Library, 1247 Marin Av. 510-526-3720. Free workshop. Speaker Mariaelena Lemus from the Social Security Administration. For older adults, family members, service providers. Reservations not required. Continuing into December, program will be presented throughout the Alameda County Library system; for a list of dates and locations, check the Alameda County Library system website. Older Adult Services at 510-745-1491. 

Thursday, Nov. 3. 6 P.M. Lawyers in the Library at South branch, Berkeley. 1901 Russell. 510-981-6260. 

Friday, Nov. 4. 6 P.M. Legal Assistance for Seniors’ 35th Anniversary Gala. Oakland Marriott City Center Ballroom, 1001 Broadway. 510-832-3040.  

Wednesday, Nov. 9. 6:30-8 P.M. Drop-in poetry writing workshop. Free. Albany Library. 1247 Marin Av. 510-526-0660. 

Saturday, Nov. 12. 12 Noon. Beef Bowl Anime Club Meeting for adults. Albany Library, 1247 Marin Av. Contact: Ronnie Davis(510) 526-3720 x16. 

Monday, Nov. 14. 12 Noon. J-Sei Center, 1710 Carleton St., Berkeley. Monday Senior Center Lecture. “Do You Have The Right Insurance?” Speaker: Darrell Doi – CLTC Financial Advisor/Long Term Care Specialist. To place a reservation for the lecture and/or lunch at 11:30am, call 510-883-1106. 

Monday, Nov. 14. 12:30 -1:30 P.M. Albany YMCA/Albany Library Brown Bag Lunch Speaker’s Forum: Bob Lewis, Birds of the Bay Trail . Bob will illustrate this talk with images of birds seen along the Bay shoreline and will discuss identification, migration, feeding habits and nesting. Contact: Ronnie Davis 510-526-3720 x16.  

Tuesday, November 15. 1 P.M. Falls Prevention Discussion Group. Join Tina Maria Scott, Community Health Outreach Worker, with the Senior Injury Prevention Program—Senior Injury Prevention Project, for a Falls Prevention Discussion Group. Focus will be on factors that cause falls. Areas that will be discussed are Changing Behaviors, Nutrition & Medication Management, Fitness, and Home Safety Checklist by way of “Show & Tell”. Participants will receive a Falls Prevention Manual and other useful information that is easy to read. 

Tuesday, November 15. Annual National Memory Screening Day. http:///  

Saturday, Nov. 19. 10 A.M. – 4 P.M. Friends of the Albany Library Book Sale. 1247 Marin Av. Please do not bring donations the week prior to the sale. Contact: Ronnie Davis 510-526-3720 x16 Also Sunday, Nov. 20 from 11-4 P.M.
Thursday, November 23. 1:30 – 2:30 P.M. Free. Albany Library. 1247 Marin Av. 510-526-0660. Great Books Discussion Group: John Steinbeck’s Travels with Charley