How The Wal-Mart Women Lost

All nine Justices today agreed on a legal point about whether the women suing Wal-Mart count as a single class. It's where they disagreed, 5-4 along ideological lines, that matters — namely, whether you can have a discriminated class without a written policy of discrimination. Guess which side all three female justices were on?

The decision was unanimous when it came to whether the plaintiffs, who were trying to sue on behalf of a broad swath of women who worked at Wal-Mart since 1998, had "improperly sued under a part of the class action rules that was not primarily concerned with monetary claims," as The Times put it.

But Antonin Scalia's majority opinion lost four justices — former civil rights attorney Ruth Bader Ginsburg, plus Elena Kagan, Sonia Sotomayor, and Stephen Breyer — when he argued that there could be no class that was discriminated against because there was no written policy covering them all:


The conceptual gap between an individual's discrimination claim and "the existence of a class of persons who have suffered the same injury,"...must be bridged by "[s]ignificant proof that an employer operated under a general policy of discrimination,"...Such proof is absent here. Wal-Mart's announced policy forbids sex discrimination, and the company has penalties for denials of equal opportunity. Respondents' only evidence of a general discrimination policy was a sociologist's analysis asserting that WalMart's corporate culture made it vulnerable to gender bias.

The contempt dripping from Scalia's pen every time he mentions that sociologist is palpable. Also, the plaintiffs cited the fact that promotion decisions are made at the individual level by managers as an engine of discrimination, but Scalia saw in it the opposite: "Wal-Mart has no testing procedure or other companywide evaluation method that can be charged with bias....The whole point of permitting discretionary decisionmaking is to avoid evaluating employees under a common standard."

Indeed, he seems to have unyielding faith in that discretionary decision-making:


To the contrary, 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 that produce no actionable disparity at all.

This is a novel trap: Because clearly individuals don't discriminate against a class of people — say, women who they think are less likely to be competent or committed — and nothing is on the books, systemic discrimination must not exist. Case closed!

Of course, Ginsburg and her Democratic-appointed colleagues saw it differently. In arguing that they would have sent the plaintiffs to a lower court and try the case under different rules, Ginsburg pointed out, "Women fill 70 percent of the hourly jobs in the retailer's stores but make up only 33 percent of management employees," and that "the plaintiffs' 'largely uncontested descriptive statistics' also 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." Those are a lot of individual decisions that have nothing to do with each other.

And Ginsburg didn't have nearly as rosy view of what world the individual decisions, influenced by a top-down culture, would create:

Managers, like all humankind, may be prey to biases of which they are unaware. The risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes."

In the world depicted by Scalia, Thomas, Alito, Roberts, and Kennedy, systemic discrimination only exists when written down or with a distinct policy, which in today's lawyered world is an exceedingly high standard. Ladies, you're on your own.

Wal Mart Stores Inc v. Dukes [Supreme Court, pdf]
Justices Rule For Wal-Mart In Bias Case [NYT]