Walmart, Sexism and the Supreme Court

From The Guardian UK: http://www.guardian.co.uk/commentisfree/cifamerica/2011/jun/21/walmart-women-class-action?INTCMP=SRCH

The Supreme Court's free pass on sexism for Walmart

The Roberts court decision to block the class action lawsuit for sex discrimination effectively defines Walmart as 'too big to sue'

Laura Flandersguardian.co.uk, Tuesday 21 June 2011

Let's get this right: the world's biggest boss, supported by companies as diverse as Altria, Bank of America, Microsoft and General Electric and backed up by the godfather of big business (the US Chamber of Commerce) has persuaded the US supreme court that thousands of women workers can't possibly share enough of an interest to constitute a class?

It's hard to know which part of the court's decision in Dukes v Walmart hurts equity most: the assault on class-action jurisprudence generally, at a time of shrinking tools for workers seeking redress, or the defeat of history's biggest gender-based claim before a court that, for the first time, includes two women, one of whom (Ruth Bader Ginsburg) made her reputation in sex discrimination law.

Dividing 5-4, in Dukes v Walmart, the supreme court on Monday dismissed the plaintiffs' claim that companywide policy gave local managers too much discretion in pay and promotion decisions, leaving Walmart employees at thousands of Walmart and Sam's Club stores vulnerable to gender stereotypes. (The company changed the format of its name since the case was filed.) The plaintiffs "provide no convincing proof of a companywide discriminatory pay and promotion policy," Justice Antonin Scalia wrote for the majority.

In fact, absent a company-wide memo mandating discrimination, the justices could discern no problematic culture at all. Holding managers' meetings in Hooters? Nope. Referring to women workers as "Janie Qs?" Nah-uh. Paying women less than male workers in every job classification in every region? Explaining, as one plaintiff was told, that Walmart pays men more because "they have families to support?"

Apparently, what the plaintiffs needed to produce for this court was an enormous Walmart yard sign reading "CORPORATE PATRIARCHY TO BE PRACTISED HERE".

Continue reading at: http://www.guardian.co.uk/commentisfree/cifamerica/2011/jun/21/walmart-women-class-action?INTCMP=SRCH

From The Nation: http://www.thenation.com/article/161571/dukes-v-wal-mart-and-limits-legal-change

Dukes v. Wal-Mart and the Limits of Legal Change

Liza Featherstone

June 20, 2011

The Supreme Court yesterday unanimously slapped down the largest civil rights class action suit in history—on a dry technicality. Justices agreed that Dukes v. Wal-Mart, the ten-year-old sex discrimination lawsuit, should not proceed as a class action because the lower courts had not followed proper procedure in certifying it. While the Court’s decision is discouraging, no one should imagine that it represents an end to the fight for justice at Wal-Mart.

Dukes represents an effort to redress a massive pattern of inequity at the nation’s largest private employer. Women were paid less than men in just about every position at the company, and promoted into management at far lower rates, despite higher performance evaluations than their male colleagues. No position was too minor to be exempt from male privilege—there were very few male cashiers, for instance, but those few were paid better than female cashiers.

Departments were segregated, with women selling baby clothes and men selling electronics, and the predominantly male departments paid better. (Plaintiff Cleo Page was told that customers would feel more “comfortable” buying sports equipment from a man.) Lower courts had ruled that Dukes should proceed as a class action, and even Wal-Mart’s own lawyers had urged the company to settle, but the company was determined to keep fighting all the way to the Supreme Court—and obviously, had the resources to do so.

The Supreme Court ruling is a big victory for Wal-Mart, for large corporations everywhere hoping not to be sued, and, not least, for right-wing ideologues who hate to see the free market gummed up with disputes over fairness and social justice.

Continue reading at: http://www.thenation.com/article/161571/dukes-v-wal-mart-and-limits-legal-change

From In These Times: http://www.inthesetimes.com/working/entry/11544/too_big_to_sue_high_court_thwarts_wal-mart_discrimination_case/

Too Big to Sue? High Court Thwarts Wal-Mart Gender Discrimination Case

By Michelle Chen
June 21, 2011

As legions of Walmart workers shuffled into work on Monday, the Supreme Court smacked down a major class-action lawsuit that might potentially have shifted the legal landscape on women's rights in the workplace.

The gender-discrimination lawsuit against the world's most notorious retail giant had been pending for years. Now the Court's majority opinion has declared that, in light of "Walmart's size and geographical scope," the plaintiffs could not provide "significant proof that Wal-Mart operated under a general policy of discrimination. That is entirely absent here."

And with that, Justice Antonin Scalia rendered perhaps hundreds of thousands of working women absent from the discussion on gender discrimination in today's sink-or-swim economy. The split in the most significant part of the judgment, the class-action aspect, was five to four, putting all the female justices in the minority. The division ironically suggested a lack of self-reflection on how structural gender discrimination works in powerful institutions.

The core of the decision is not about whether Walmart did indeed discriminate. There's ample evidence of that, though, including records of pay scales skewed against women, unequal hiring patterns in managerial positions, and expert testimony on the social implications of these trends. The Court's opinion doesn't examine that, but rather whether America's discount paradise can be held legally accountable for systematic mistreatment of female workers.

Continue reading at: http://www.inthesetimes.com/working/entry/11544/too_big_to_sue_high_court_thwarts_wal-mart_discrimination_case/

From PoliticusUSA: http://www.politicususa.com/en/wal-mart-rights

The Founding Fathers Did Not Write The Bill Of Rights To Protect Wal-Mart

By Rmuse
June 21, 2011

There are many varied opinions on the purpose of the United States Supreme Court, but its basic function is to uphold the Constitution, Bill of Rights, and check the power of the Legislative and Executive branches of government. The current court has extended its purview to protecting corporations from adherence to the law and for ensuring that conservative ideology is the law of the land. Last year, the court’s decision in the Citizens United case opened the floodgates of corporate control of elections that has produced the current flock of Republicans who are rapidly transforming America into a plutocracy. Yesterday, the court ruled unanimously that a class-action against retail giant Wal-Mart was too broad in scope, and also ruled by a vote of 5-4 that the 6 women plaintiffs did not prove they suffered from a common policy of discrimination in pay equality and discrimination.

The conservative majority’s decision is not surprising, and is yet another blow to women as well as workers whose best chances at forcing change in corporate attitudes toward workers’ rights is a class action lawsuit. The conservative majority claimed that the 6 women, who represent as many as 1.6 million current and former female employees, did not prove they suffered from a “common policy of discrimination.” Regardless of the conservative court’s decision, one would think that 1.6 million female employees complaint of pay and promotion discrimination constituted a pattern, but if the lawsuit had proceeded and the plaintiffs had prevailed, Wal-Mart would have been liable for billions of dollars in back pay. The current court’s majority could never have allowed the world’s largest retail employer to be held accountable to pay such huge damages, so they did not allow the 6 women to present their case for adjudication.

The decision is a double blow to workers in that women will continue to suffer discrimination from Wal-Mart and every other corporation, and large groups of workers will have difficulty ever bringing a class action against a corporate giant. The decision was in keeping with the conservative-minded court’s favoritism toward business and discrimination against the working class.

It is not the least bit surprising the court did not let the women plaintiffs present their argument that they were discriminated against because the conservatives, led by Antonin Scalia, do not believe women are protected by the Constitution. The 14^th Amendment includes principles to protect citizens from being denied certain rights, and this court decision ignored each of them in favor of a corporation. In particular, the 14^th Amendment guarantees that no person could be denied equal protection of the laws and that no person could be deprived of “life, liberty, or property” without “due process of the law.” In both senses, the high court denied the female plaintiffs due process and equal protection of the law, but the women were forewarned by Antonin Scalia who said earlier that women were not protected by the 14^th Amendment.

Continue reading at: http://www.politicususa.com/en/wal-mart-rights