Court to Walmart: Go Forth and Discriminate

Yesterday's decision in Walmart v. Dukes, in which the five conservative justices ruled that Walmart was too big and diverse to be subject to a company-wide class-action suit, reminds me of this bit from British comedian Eddie Izzard on mass murderers getting away with, well, being mass murderers (the relevant part starts about 45 seconds in):

Izzard hints at one problem with Justice Scalia's majority opinion in the case, which you could summarized as: Wal-Mart's managed to discriminate against so many people that we simply can't hold it accountable. In fact, we can't even classify this as a crime. Discrimination against one person we get; against 1.5 million, well, frankly we're impressed.

In all seriousness, this is one of the reasons yesterday's ruling is so important. In brief, the Court found that Title VII of the Civil Rights Act, which prohibits gender-based pay discrimination, does not apply because there was no official discriminatory policy in place. Title VII was passed at a time when there were discriminatory laws on the books; today, you'd be hard-pressed to find discrimination so blatantly codified in law. But pay and promotional inequity at Walmart along gender lines persist in high numbers across every level and region, which shows that today, discrimination happens far more often on a social level than a legal one. 

Over the last several years, the Court has dismissed systemic problems on various fronts because there was insufficient proof of systemic discrimination. One good example is a 1987 case challenging a death sentence to a black man based on statistical data showing that race is a factor in giving black men the death penalty. The Supreme Court ruled that without explicit proof of discrimination in that case, the larger body of work was not enough to commute the sentence. Similarly, in 2007, the Court ruled against Seattle's program to desegregate schools, arguing it was different from Brown v. Board for the same reason they dismissed the case against Walmart: It wasn't sanctioned inequality; it simply exists.

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