The Wal-Mart decision missed the point because discrimination affects everyone

The Supreme Court’s opinion this week in Wal-Mart v. Dukes embraced the premise that a written policy forbidding sex discrimination may be enough to immunize employers from accountability for discrimination that can affect personnel decisions.    Now, with the blessing of the Supreme Court, any company that adopts a corporate anti-discrimination policy may have a strong defense against a case brought as a class action, regardless of what its management is really doing. The decision was not on the merits of the plaintiffs’ discrimination claims, meaning that the Court did not decide whether Wal-Mart discriminated against plaintiffs; only that the claim cannot be pursued pursuant to a certain section of the federal rule regarding class actions. 

The justices split along ideological lines on the issue of whether the plaintiffs had satisfied the commonality requirement of Federal Rule 23(a). While the dissenting Justices agreed with the majority that the case should not be certified under Rule 23(b)(2), they would have remanded the matter to the District Court for further review.

The four dissenting justices, led by Justice Ruth Bader Ginsburg, wrote “[t]he practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been know to have the potential to produce disparate effects” and was enough to present a common question under Rule 23(a). The dissenting Justices point out that women make up 70% of Wal-Mart’s hourly workers but only 33% of management employees.  They also note that the higher up you look in Wal-Mart’s corporate structure, the lower the percentage of women.  In addition, these Justices note that plaintiffs’ “‘largely uncontested descriptive statistics also showed that women working in the company’s stores ‘are paid less than men in every region’”.

Sex or race or age discrimination is harmful to society and, in fact, negatively affects everyone (within the same company or not) in many of the same ways.  While the individual results may be different – hired or not, promoted or not, trained or not – the act of discrimination is to maintain a hierarchy and enforce control of the subordinate.  As the dissenting Justices noted, “[t]he risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes.”  Please see our prior post on discrimination.