Women, minorities and others who face discrimination at the workplace have less federal legal protection now that the U.S. Supreme Court has tossed out the largest civil rights class action suit in history. The 5-4 opinion makes it more difficult to pursue class action lawsuits and reduces the likelihood that large national companies will have to answer for discriminatory employment practices.
The decision in Wal-Mart Stores Inc. vs. Dukes set aside a 10-year-old sex discrimination suit representing 1.5 million current and former female Walmart employees. The suit accused the company of making decisions on pay and promotions in a way that discriminated against women. While the court unanimously invalidated the class on a technical point, the five-member conservative majority went further and substantially increased the burden on civil rights victims seeking class certification. The four liberal members would have sent the case back to the lower court for it to possibly proceed under a different part of the class action statute.
Justice Antonin Scalia, writing for the majority, asserted that because Walmart's pay and promotion decisions were made at each of the company's 3,400 stores and at the discretion of local management, female employees didn't have enough in common to constitute a class. He actually points to Walmart's announced corporate policy forbidding sex discrimination as evidence that the company doesn't maintain a general policy of discrimination. Scalia and the rest of the conservative majority seemed purposely blind to the female employees' common grievance that this discretionary pay and promotions policy was discriminatory against women.
As the dissent by Justice Ruth Bader Ginsburg points out, the plaintiffs presented evidence that Walmart maintained a corporate culture permeated with gender bias. Women filled 70 percent of Walmart's hourly jobs but made up only 33 percent of management, she wrote. And women in every region of the company were paid less than men — a salary gap that kept widening over time even for women and men in the same jobs, hired at the same time. When Walmart was compared to similar retailers, a statistical analysis concluded that Walmart promoted women at lower percentages than its competitors.
In the past, plaintiffs could demonstrate gender bias even when corporate policy left personnel decisions to local supervisors, uncontrolled by formal standards. In Walmart's case, it had a nearly all-male managerial force. Certainly their unconscious biases and gender stereotypes could have contributed to decisions over who got paid more and promoted. This was a company where senior management often referred to female associates as "little Janie Qs."
Class certification is a threshold question that starts a case rolling. It is concerned with whether the class has questions of law or fact in common, and whether the class representatives will fairly protect the interests of the class. That should have been a standard the Walmart women could meet. But with the court's new standard, class certification may be as hard to come by as a win on the merits.