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."