Today the Supreme Court decided what may well be the most consequential case of the current term, Wal-Mart v. Dukes, a sweeping class action suit filed almost 10 years ago that has yet to be litigated on its merits. Filed on behalf of the more than 1.5 million women who have worked at Wal-Mart since 1998, the suit alleges that the company favored men over women in decisions about pay and promotion in violation of Title VII of the Civil Rights Act. Today, the Supreme Court told them all to go home.
Writing for the court's five conservatives—and all but one of its men—Justice Antonin Scalia found that the women seeking to be certified as a single class did not have enough in common to go forward with the lawsuit en masse. Wal-Mart, the nation's largest private employer, seems to have figured out that the key to low-cost discrimination lies in discriminating on a massive scale. In Scalia's words, all these disparate women with their multiple claims about "millions of employment decisions" lacked sufficient "glue" to be permitted to move forward together.
A lot of critics are saying that this decision has created a new rule: Some companies are simply too big to sue. But that's only half the story. The other half is that in the court's eyes, sex discrimination is simply too pervasive to be a problem.
Don't be distracted by the fact that the court decided part of the case unanimously. The nine justices were in agreement regarding only the important, but technical question of whether the request for back pay was improper under a provision that normally provides only injunctive relief. The red meat of the Wal-Mart decision lies in the fight between Scalia and Justice Ruth Bader Ginsburg over a much more fundamental question: Was there a single question of law or fact common to all the women in the suit? The federal district court and 9th Circuit believed that there was. The five justices in the majority disagreed.
Scalia concludes that (even in advance of a lawsuit) the women could not showthat Wal-Mart "operated under a general policy of discrimination."That's partly because "Wal-Mart's announced policy forbid sex discrimination" and partly because he rejects the plaintiffs' claim that Wal-Mart's "policy" of allowing discretionby local supervisors over employment matters constitutes a policy at all. As Scalia sees it, in giving local managers so much leeway in making personnel decisions, Wal-Mart actually established "a policy against having uniform employment practices." It's not Wal-Mart discriminating against women. It's just all these men doing it, and God knows men don't have unconscious biases and prejudices against women.
This had been a problem for plaintiffs in the case from the outset. As Richard Ford put it, "because Wal-Mart gives managers at the store level almost complete discretion to make personnel decisions, there's nothing that connects the decisions of one Wal-Mart manager to those of another. Even if a lot of Wal-Mart employees suffered sex discrimination, if each individual store has its own distinctive practices, there are no questions of law and fact common to all Wal-Mart employees that would justify joining the claims as a class action." Or as Chief Judge Alex Kozinski put it, dissenting from the 9th Circuit's decision to certify the class, these women "have little in common but their sex and this lawsuit."
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.