Defenders of today's Supreme Court ruling in Wal-Mart v. Dukes, the largest class-action suit ever, may try to portray the decision, which on certain aspects was unanimous, as one that reflects a larger consensus than it actually does.
The Justices agreed that, given the differing responsibilities and pay scales involved, that the issue of back pay for the women who claimed they had been systematically discriminated against should have been dealt with under a different part of the law. But the more important issue, and the one on which the justices reached a far more divisive 5-4 decision, is whether the women could have proceeded as a class at all. The conservative majority essentially set a new higher standard for defining a class, and in doing so made it more difficult for class action lawsuits to be filed in the future. Class action suits are among the few tools for forcing changes in policy when the issue is systemic, rather than individual, discrimination, and without the class action option the women in the case will be forced to seek relief individually.
Justice Antonin Scalia's majority opinion, and Justice Ruth Bader Ginsburg's dissent, reveal a fundamental cleavage in the way the Republican and Democratic appointees on the court view the issue of discrimination. Dismissing the statistical and anecdotal evidence filed by the plaintiffs, Scalia argued that "Wal-Mart’s “policy” of allowing discretion by local supervisors over employment matters" was "just the opposite of a uniformemployment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices." Scalia also pointed out that Wal-Mart has a written policy of non-discrimination.
"The majority makes a huge deal out of the fact that they have a piece of paper that says we have a “nondiscrimination policy,” but they know that this system results in women being overwhelmingly at the bottom, and as you go up the chain, there's only men at the top," says Brian J. Siebel, Director of Justice Programs at the Alliance for Justice. “The [managers] are in the 'good ol’ boys club." In her dissent, Ginsburg notes that at Wal-Mart, women fill about 70 percent of the hourly retail jobs, but only 33 percent of management employees. The reason, Ginsburg argues, may very well be the subjective "tap on the shoulder process" that allows certain subjective standards, influenced by gender bias, to prevail when it comes to selecting employees deemed "management material."
Not only do you have to prove the "old boy network exists," but now you have to do it under a higher standard of proof than ever before. Where discrimination operates as unconscious or unacknowledged bias, rather than as a deliberate, concerted effort to bar one particular group of people from advancing, even where the systemic impact is clear, the conservative justices see no evil.
Scalia's opinion reflects the deeply flawed view that intent is required for discrimination, and that nominally being opposed to discrimination is by itself an effective bulwark against discrimination occuring. As Ginsburg wrote in her partial dissent, "Managers, like all humankind, may be prey to biases of which they are unaware."
The District Court's identification of a common question,whether Wal-Mart's pay and promotions policies gave rise to unlawful discrimination, was hardly infirm. The prac-tice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, haslong been known to have the potential to produce dispa-rate effects. Managers, like all humankind, may be prey to biases of which they are unaware. The risk of dis-crimination is heightened when those managers are pre-dominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes.
The new standard set by the court, explained Columbus University School of Law Professor Suzette Malveaux on a conference call set up by the American Constitution Society, will make it very difficult to file class action cases against large companies. “Given all the evidence put forward here, it’s very difficult when, at any time, plaintiffs would be able to put together enough evidence to challenge a company the size of Wal-Mart,” Malveaux said.
The Dukes case is just the latest in which liberals argue, corporate interests have found a sympathetic ear in the Roberts court. According DePaul College of Law Professor David Franklin, who was also on the call, the success of business interests in the Roberts court that reflects not just the attitudes of the conservative majority, but the relatively conservative view of all the justices on the bench on the proper role of the courts,
"The court has a skepticism about litigation, especially litigation as a way of addressing big social or economic problems," Franklin argued. "It's not a skepticism that's shared by five of the nine members of the court, but sometimes six, seven or all nine of them.”
That's reflected in the parts of the decision in which the Democratic appointees voted as a whole with their conservative colleagues, adopting a stricter standard than before in determining eligibility for back pay in class action lawsuits.
“Justice Roberts famously said this is about balls and strikes, well, the Roberts court is moving the pitching mound for plaintiffs down to second base, and out to center field," said Cyrus Mehri, whose law firm specializes in anti-discrimination cases. "Yes it’s balls and strikes, but [now] you have a much harder time getting the ball over the plate.”
