Earlier this week, the Supreme Court handed down a 5-4 decision that effectively allows massive corporations to discriminate at will, as long as the scope of discrimination is so widespread that it becomes difficult to manage. By reversing the lower court’s decision in Dukes v. Walmart, the Supreme Court created legal cover for national discrimination under the cover of efficient business.
The lawsuit, first filed in 2000, accused Walmart of companywide discrimination against women in promotions, pay, and job assignments. The case was certified as a class action in 2001, making its 1.6 million female plaintiffs pool the largest class-action in history. After the class certification was finally upheld by the Ninth Circuit in 2009, Walmart appealed to the Supreme Court.
On Monday, the Court’s conservative wing threw out the certification, saying that “to sue about literally millions of employment decisions at once, [plaintiffs] need some glue holding the alleged reasons for all those decisions together.” Majority author Justice Antonin Scalia concluded that this necessary glue was lacking, and that it would “be impossible to say that examination of all the class members' claims will produce a common answer to the crucial discrimination question.”
In other words: If you cannot show that you were discriminated against in impossibly identical ways, good luck suing the big company holding you down.
Tellingly, all three females on the Court disagreed with Justice Scalia, arguing that the evidence presented unequivocally showed that “gender bias suffused Walmart’s company culture.”
The fallout from this decision is two-fold. First, the 1.6 million who may have suffered discrimination at the hands of their employer are, pardon the French, up a creek. Individually, none of these working class women can afford to go up against the multi-million dollar legal team fielded by Walmart; now, most of these women will be unable to band together because the continued discrimination demonstrated over the course of a decade was not “similar” enough to merit a day in court.
Second, the damage done by this ruling is not limited to the Walmart employees who suffered discrimination. Now, all other corporations will point to this decision in arguing that their employees were discriminated against “differently,” and therefore should not be considered a class. This creates a legal smoke screen for corporations to hide behind and discriminate with no shot of recourse.
Adding insult to injury, Justice Scalia pointed to the fact that Walmart had an anti-discrimination policy in place at headquarters. Unfortunately, he seemed to miss the irony in pointing to a corporate policy as being enforced company-wide while dismissing the discrimination claims of 1.6 million women who argued that the policy had been ignored.
The reason class-actions exist is to give groups wronged by larger entities an opportunity to band together and fight to be heard. Now, the ability to do that has been hamstrung by a Court that missed the forest for the trees. By focusing on the details that made the stories of the janitor from California and the Manager from Florida different, the five Justices missed the larger point: The largest corporation in the world was systematically discriminating against women. The Court’s decision to strip these women of their collective day in court is a dangerous approval of corporate discrimination practice.
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