The issue: There has to be a better judicial mechanism to resolve plausible claims of widespread discrimination
The Supreme Court handed Wal-Mart, and other large employers facing class-action suits, a huge victory last week. The aggrieved workers who filed the suit didn’t fare quite so well.
OVERTURNING an appeals court, the justices unanimously ruled that the suit had been improperly filed under class-action rules. Rather than sending the case back to be properly filed, by a 5-4 vote the conservative and pro-business majority threw the case out altogether.
Some 1,600 of Wal-Mart’s women employees had alleged years of gender discrimination in pay and promotion by the giant employer. Both sides submitted dueling statistics on promotions to management positions. The plaintiffs were armed with anecdotal evidence that Wal-Mart’s corporate culture favored giving the men higher raises on the grounds that the men had families to support — an absolutely untenable position, one would think, given the number of single mothers supporting families.
Worldwide, Wal-Mart operates more than 8,000 stores with 2.1 million employees. The company delegates decisions over pay and promotions to its individual store managers.
Writing for the majority, Justice Antonin Scalia said: “Because respondents provide no convincing proof of a companywide discriminatory pay and promotion policy, we have concluded that they have not established the existence of any common question.” In short, he said, there was no “glue” binding the plaintiffs together.
This considerably raises the bar in cases where the discrimination is not a written policy but an unspoken understanding of an unfair corporate culture.
Justice Ruth Bader Ginsburg retorted to no avail that there was indeed a common issue because, “Wal-Mart’s delegation of discretion over pay and promotions is a policy uniform throughout all the stores.”
SCALIA’S RULING tightens the standards for large class-action suits, particularly on meeting the criteria of common legal and factual issues, perhaps beyond what Congress intended when it last revised the law in 2005.
Some of the plaintiffs plan to pursue their grievance through individual cases with the Equal Opportunity Employment Commission or through class-action suits more tightly targeted to individual stores or regional groups of stores.
The Wal-Mart class action may have been, as the court found, too much of a blunt instrument, but there has to be a better judicial mechanism to resolve plausible claims of widespread discrimination.