Back at the end of March, it was reported that a major anti-discrimination case against Walmart had finally worked its way up to the US Supreme Court.
Walmart Stores, the world’s largest retailer, went before the Supreme Court on Tuesday to argue that the court should halt a class action anti-discrimination lawsuit brought by female employees that could cost the retailer billions. In the works for the last 10 years, the suit could be the largest class action civil rights case in U.S. history.
Beginning in 2001, more than 100 female employees accused Walmart, which pulled in $14.1 billion in profits last year despite lagging U.S. sales, of paying its female employees less than men in equivalent positions and favoring men in promotions at 3,400 U.S. stores since late 1998. Walmart has denied any wrongdoing and emphasizes that its corporate policy forbids discrimination, encourages diversity and ensures fair treatment.
A Walmart win would be a terrible blow to civil rights, legal experts say, compromising the mechanism that allows employees to unveil and protect themselves against workplace discrimination.
“Some employers have made the economic calculus that they’ll never be held accountable for discrimination, if it exists, and they might as well continue the status quo until someone holds them accountable for it,” said Marcia Greenberger, co-president of the National Women’s Law Center. “I think a victory [against] Walmart would change that.”
The legal question the Supreme Court is considering is not whether the world’s largest retailer discriminated, but instead a technical question: Are the statistics sufficient such that these women who began the lawsuit a decade ago should be able to represent a huge nationwide class of current and former employees in a class action suit? Walmart will argue before the court that the female employees at different stores don’t have enough in common to be a single class action lawsuit.
According to a published report on the arguments before the Supremes, our corporate friendly Justices don’t seem to be impressed with the workers.
On Tuesday, the U.S. Supreme Court heard oral argument on Wal-Mart’s appeal of the Ninth Circuit’s en banc decision upholding the certification of a class action gender discrimination lawsuit in Dukes v. Wal-Mart Stores, Inc. As noted by a number of commentators (among them The Wall Street Journal, Forbes, The Christian Science Monitor, and CNN), the tone of the Court’s questioning indicates that the Court is likely to rule in Wal-Mart’s favor.
Several Justices expressed strong skepticism of the merits of Plaintiff’s charge of company-wide sex discrimination. After confirming that subjective decisionmaking is not necessarily illegal, Chief Justice Roberts asked how much discrimination needs to be shown to conclude that it was caused by corporate policy, rather than a few bad actors. He also pointed out that Wal-Mart’s pay disparity is less than the national average.
The Court also appeared to be skeptical of Plaintiffs’ ability to certify a class. Justices Breyer, Scalia and Kennedy all questioned how a policy could truly be common to all women employees. Justice Scalia pointed out that the class included women who were not underpaid, and Justice Kennedy observed that if the decisions were truly “standardless” then they could not be common.
The most skeptical questioning concerned a defendant’s ability (or inability, in this case) to defend itself in such a large class action. Justices Ginsburg and Sotomayor both asked when and how a defendant could show that an individual class member was not entitled to back pay because she should have been fired or disciplined.
“Why waste any print or time on this? SCOTUS will rule against the workers. It will rule for the corporations.
The oligarchic kleptocratic takeover of American government at all levels, Congress, Judiciary, and Executive, is complete. Citizens United demonstrated this for SCOTUS. To expect any ruling now that upholds the rule of law or the rights of workers is just a waste of time.
Bow down now to your masters, the 5% of our citizens who own over 65% of the wealth of the nation, or more; and your corporate masters, who own Congress, pay no taxes (See GE, billions in unpaid taxes), and are awash in taxpayer bailout money while the deficit is to be addressed by destroying the middle class, the unions, and the poor, and insuring that their votes are prevented or ignored.
Welcome to what USED TO BE America. Not sure what to call it anymore. Certainly not the land of the free under a rule of law. More like a sharecroppers nightmare. When you have Republicans now actively advocating a return to child labor, just what do you expect?”