June has been in recent years the time for disappointing Supreme Court rulings, and this year is no different. In a major win for corporate America, the Court effectively threw out a large sex discrimination case against Wal-Mart.
The implications for class-action lawsuits in general could be even more enduring. The 9th Circuit Court of Appeals ruled that well over one million female Wal-Mart employees could join a lawsuit that accused the retailer of wage and promotion discrimination against women. The Supremes overturned that, saying unanimously that all those employees could not join the lawsuit. It was on the broader question of class-action lawsuits in general, however, that there was an ideological split.
The justices divided 5-4 on another aspect of the ruling that could make it much harder to mount similar class-action discrimination lawsuits against large employers.
Justice Antonin Scalia’s opinion for the court’s conservative majority said there needs to be common elements tying together “literally millions of employment decisions at once.”
But Scalia said that in the lawsuit against the nation’s largest private employer, “That is entirely absent here.”
Justice Ruth Bader Ginsburg, writing for the court’s four liberal justices, said there was more than enough uniting the claims. “Wal-Mart’s delegation of discretion over pay and promotions is a policy uniform throughout all stores,” Ginsburg said.
That’s a huge corporate victory, allowing them to abuse their employees that much more with one less consequence. Class-action suits are one way to keep employers in line, because the knowledge of the size of their exposure will discourage them. Now, workers systematically screwed by their corporate parents have less access to the courts, less ability to make a systematic claim.
The Administration likes to talk about the Lily Ledbetter Fair Pay Act. But this blow by the Supreme Court necessitates more law in that arena. The courthouse door has again been blocked to regular workers at the bequest of corporate interests. The Roberts courts’ nearly unblemished corporate record continues.
UPDATE: NOW President Terry O’Neill has a sharp reaction.
“With this decision, the Supreme Court has assisted Wal-Mart in its efforts to systematically dole out promotions and pay raises on the basis of sex. The law calls that illegal discrimination, but this Court has turned its back on the more than million women who only sought simple justice,” said NOW President Terry O’Neill. “The women of Wal-Mart deserve respect and fair treatment, and we will continue to stand up for their rights.”
She adds that one problem for the women of Wal-Mart was that they weren’t unionized, so they had a barrier to collectively bargain for their rights in the workplace.




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The Fuckwit Five strike again.
“A minority led by Justice Ruth Bader Ginsburg agreed that class action status was inappropriate for this type of case, but said evidence does suggest that a culture of gender bias existed at the company.
The burden on individual employees in suing a corporation the size and character of Wal-Mart is effectively insurmountable. It is vehemently anti-worker and anti-union; it makes Big Auto’s historic anti-UAW bias look benign.
Wal-Mart goes to the wall to defend all employment suits, in part because its discrimination policies are at the heart of its business model. As Ruth Bader Ginsburg noted, 70% of its hourly workers are women, but only 30% or so of its “managers”.
Wal-Mart’s vigorous defense against every employment lawsuit makes it prohibitively expensive for a worker earning wages at or just above the poverty line to hire a lawyer, obtain discovery and build a case. Obtaining class certification would have been among the only effective ways to obtain the power and leverage to obtain redress for past wrongs, even if it remained unlikely to prevent future ones.
Forbes coverage of this decision focuses on its damage to plaintiffs’ lawyers and to the standing of the supposedly liberal 9th Circuit. Both are betes noir for corporate executives. The real damage is to working men and women, and to access for us all to the insides of the courthouse.
We are already barred from the West Wing, from Congressional dining rooms and from the Cuban cigar smoke-filled rooms of K Street’s biggest lobbyists. Barring the courthouse door removes one of the few remaining avenues for redress of basic grievances.
I think the “liberal” four considered this form of class action inappropriate. A sensible Congress less in thrall to corporations would improve workers’ access to a practical forum to redress grievances, and a White House would support it. The ones we have will be joining Scalia and the Chamber in emptying those magnums of champagne.
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