The Supreme Court's recent decision in the Wal-Mart v. Dukes case brings up so many issues that anger me it’s hard to know where to begin.
First of all, I feel I need to say that I understand the ruling. I have read the 42 page decision, and I get it (as much as someone who didn’t go to law school can). The Court did not have to make a decision about whether Wal-Mart discriminated against anyone; they decided only on a procedural issue as to whether the suit could be brought at all. One decision, about a specific rule of civil procedure, was unanimously decided against the plaintiff, and one more general rule was decided in a 5-4 decision against the plaintiff. (You can find the entire civil procedure rule on class action law suits here.)
The part that there was a disagreement about was Rule 23(a) as a whole:
(a) Prerequisites: One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable,
(2) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class
The majority (Justices Antonin Scalia, Clarence Thomas, Samuel Alito, Anthony Kennedy and Chief Justice Roberts) not only said that these prerequisites were not met, but even more, that lawyers who bring a nationwide class action suit against an employer would have to offer strong evidence of a nationwide practice or policy that hurt the class. The idea that 1.5 million women could all have similar enough complaints to meet the criteria for a class action suit is improbable. Furthermore, Justice Scalia stated that the plaintiffs’ claims that individual managers were to blame for the discrimination is “quite unbelievable” over the large geographical scope of the company “without some common direction.” Also, the plaintiffs were arguing that Wal-Mart’s lack of a comprehensive institutional policy is to blame, which is the “opposite,” Scalia continued, of what is needed to bring a class action claim. So, basically because it’s unlikely and the contrary to the way the law is written, it’s not due class action status and therefore this suite is not due a real trail.
The unanimous part of the decision was that Rule 23(b)(2) was not satisfied: “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” There is a difference in criteria for a class action suit that seeks back pay and one that seeks injunctive or declaratory relief. This means that cases looking for money are individualized based on the plaintiff’s specific grievances (more specific criteria, harder to prove), while cases seeking a company policy change are based on similar collective complaints (fewer criteria, easier to prove). The lawyers for the plaintiff were organized under the injunctive relief criteria, but were seeking back pay. I get it, understood, stupid plaintiff lawyers.
Another issue that Scalia stressed is that grievances that result in many class action law suits should be dealt with not in the courts but within the workplace, by “professionals.” It is in my understanding that the entire point of this case (and of these kinds of suits in general) is because of an inherent impossibility of that to actually happen fairly. Especially for large, national corporations, the individual worker has very little power and can be easily dismissed, fired, or forced out. Wal-Mart, the majority of whose employees come from the mostly uneducated working poor or lower classes have even less to work with. Labor unions were created to pool the powers of individual workers to achieve certain goals (like workplace safety, wage increases, benefits, and discrimination disputes). Wal-Mart, shockingly enough, has an anti-union policy, or what they like to call “pro associate policy.” Any grievances an employee might have are dealt with mostly by direct supervisors, probably the person who committed the discriminatory act in the first place. If the employee managed to move his or her grievance up the ladder, it might be dealt with by someone who has an even bigger paycheck from Wal-Mart with which to gamble. Therefore, class action law suits are one of the few tools at the disposal of any Wal-Mart employee who feel they were discriminated against. But now the Supreme Court has made it even harder for class action suits to be brought against a national (multi-national) company because wronged parties now must claim, and prove, institutional discriminatory policy. As I’ve heard said, first we were told some companies were too big to fail, now some companies are too big to sue.
So why don’t these 1.5 million women just break off into smaller, more manageable groups that can prove discrimination on a regional or even store specific scale. Have you read/seen A Civil Action? If you haven’t, you should. Lawyers put up the cash for civil suits. This makes them seem like money hungry parasites because they only get paid if they win, and the amount they get paid in based on how much they win. However, this is the only way employees, especially the poor and lower class ones, are going to be able to take on a billion dollar company with an army’s worth of (well paid) lawyers. Arguing more, smaller cases will raise the cost (which the Wal-Mart side can afford) and therefore make fewer lawyers willing or able to take the case on behalf of marginalized employees. Also, this extra criterion for a class action suit that Scalia wrote into the decision makes it even harder to prove class action status and again, lawyer are less likely to take these cases.
And now the part that got me interested in the first place: THIS IS GENDER DISCRIMINATION. I have been reminded that no court has ruled that Wal-Mart indeed discriminated against women, and while that might be true, I have a hard time giving Wal-Mart (regardless of my many other issues with the company) the benefit of the doubt. Professor Tanya Hernandez of the Fordham University School of Law said it best in the New York Times: “[T]he vast number of female employees who sought to be certified as a single class for purposes of filing the lawsuit because they were similarly underpaid and not promoted to management positions in vastly disproportionate rates compared with their male colleagues is a testament to the need for a large-scale scrutiny of Wal-Mart’s corporate culture and practices that could so systematically subordinate its female employees.” Wal-Mart might not have a nationwide policy of gender discrimination, but the testimony given by the plaintiff shows that their publicized policy of manager discretion in pay and promotion fosters the continued “influence of subjective unconscious bias.”
I hope I do not need to convince anyone that gender bias still exists today. Women are still generally seen as lacking the characteristics warranting promotion into managerial and higher positions. Women also make $0.77 to the $1 that men make nationwide for full-time, year round work. Women are still required to take on the majority of child rearing and household responsibilities, making it more difficult to work outside the home and/or limit availability. Unless specific criteria are spelled out for those in charge of making pay and promotion decisions, it is likely that unconscious (or even conscious) stereotyping and gender bias will influence those decisions. This is especially the case when the managers who are given this subjective power themselves might not be the most educated and/or unbiased people.
In terms of the law, there are two ways one can go about combating this discrimination (as Professor Richard Primus of the University of Michigan clearly explains in the New York Times). The first is on a specific case-by-case basis involving individuals and their actions. The other is on a broader, institutional, societal scale. Just like the distinction between a class action suit claiming monetary rewards vs. injunctive relief, the first kind of antidiscrimination case requires more criteria be met to prove wrongdoing. The courts pushed theWal-Mart v. Dukes case into the more criteria necessary kind of case, also saying that all subsequent cases should as well. This makes the courts a hard place to institute any kind of legal change to discrimination issues, which leaves us with the Legislative Branch (because that’s going so well these days). The Lilly Ledbetter Fair Pay Act, showed that Congress is necessary in getting real changes made for workers’ rights. That is unlikely to happen again until the Republicans and their fat checks from big-business get tossed back down to the minority.
And the bottom line in all this? Wal-Mart is no worse for the wear. However, these women, 1.5 million of them, are still, almost unequivocally, shit of out of luck.
-Emily
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