Of course, the lack of a formal policy doesn't always derail gender discrimination claims. And the plaintiffs had amassed statistical evidence from a pair of sociologists to show that Wal-Mart paid men more than women, promoted males over females, and did so in numbers that could not be readily explained away. As Ginsburg writes in her dissent: "Women fill 70 percent of the hourly jobs in the retailer's stores but make up only 33 percent of management employees. The higher one looks in the organization the lower the percentage of women."The plaintiffs' uncontested statistics, she notes, show that women working in the company's stores "are paid less than men in every region" and "that the salary gap widens over time even for men and women hired into the same jobs at the same time."
The law allows such "pattern and practice" evidence to be used to prove sex discrimination, even when a company has a formal policy forbidding sexual discrimination. After all, every company has a formal policy forbidding sexual discrimination and few affirmatively encourage it in writing. Scalia is unmoved, however. He asserts that "left to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion." The women of Wal-Mart can't show that managers exercised discretion in similarly gender-biased ways, he writes, and scoffs at attempts to do so through "statistical and anecdotal evidence."
Ginsburg doesn't think the anecdotal evidence is insignificant at all and she doesn't think bias, even unconscious bias, is trivial. "Senior management often refer to female associates as 'little Janie Qs,' " she observes. "One manager told an employee that '[m]en are here to make a career and women aren't.' " She writes that a committee of female Wal-Mart executives concluded that "stereotypes limit the opportunities offered to women." The court had affidavits from more than 100 female Wal-Mart employees alleging more where that came from. Ginsburg questions Scalia's finding that the lack of a centralized policy means there was no discrimination, "The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects," she writes. "Managers, like all humankind, may be prey to biases of which they are unaware."
As the Lily Ledbetter case showed, the court's devotees of strict construction and plain meaning are so enamored of the printed word that they often seem inclined to accept no other type of evidence of pay discrimination. Just as Ledbetter never received an embossed letter from Goodyear indicating that she was being systematically underpaid, so, too, the hundreds of women with claims about sex discrimination at the hands of Wal-Mart must be wrong: After all, the company's announced policy forbids it, and the perpetrators of the discrimination don't often admit to doing it. The whole purpose of this type of class action civil rights suit is to smoke out unwritten policies and unspoken bias. The women of Wal-Mart will now have to sue as individuals, or in smaller classes, or by way of the Equal Employment Opportunity Commission. Most of them will not be able to afford to litigate it alone, and some of them will be unable to prove it alone. Allowing women in this situation some effective means of justice is one of the rationales of class action litigation.
This isn't the first time this term that the court has narrowed the scope of class action litigation. And it isn't the first time the justices have ignored the evidence—and, worse yet, passed judgment on facts not yet in evidence—in an ongoing effort to prove that the only discrimination that can ever be remedied is the kind that comes right at you with a big blue sign and a greeter.