Supreme Court blocks massive sex-discrimination suit against Wal-Mart

By Robert Barnes, June21, 2011 - Washington Post

The Supreme Court on Monday blocked the massive sex-discrimination case female employees brought against Wal-Mart in a decision that might make it harder to bring future discrimination lawsuits against large corporations.

The court agreed unanimously that the Wal-Mart suit could not go forward as a class action that could affect as many as 1.5 million female workers, past and present. The decision was a huge win for Wal-Mart, which could have faced billions of dollars in damages and back pay.

The court split 5 to 4 on ideological lines, however, about whether the women had shown enough to prove there were common practices at work that resulted in discrimination at the world’s largest private employer. That split could hold great importance for future discrimination cases.

Writing for the conservative majority, Justice Antonin Scalia rejected the plaintiffs’ central contention: While Wal-Mart has a corporate policy against discrimination, it leaves hiring, pay and promotion decisions to local managers who reflect a corporate culture of male-dominance.

“In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction,” Scalia wrote for Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.

He said the women attempt “to make that showing by means of statistical and anecdotal evidence, but their evidence falls well short.”

Justice Ruth Bader Ginsburg and the liberal members of the court agreed with their colleagues on one aspect of the case: that the district court and U.S. Court of Appeals for the 9th Circuit in California should not have certified the class-action suit under a part of the federal law that allows for monetary awards, rather than simply forcing the company to change its allegedly discriminatory practices.

But she said the women had presented ample evidence that there was a problem at Wal-Mart, where women fill 70 percent of the hourly jobs but make up only 33 percent of management employees.

She found appealing the statistical regression analysis an expert had presented to show the pay and promotions disparities at Wal-Mart “can be explained only by gender discrimination and not by ... neutral variables.”

Ginsburg added: “Managers, like all humankind, may be prey to biases of which they are unaware. The risk of discrimination is heightened when those managers are pre-dominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes.”

She was joined by the court’s other female justices, Sonia Sotomayor and Elena Kagan, and Justice Stephen G. Breyer.

The court’s rejection of using statistical analysis to prove a common practice of discrimination could be key to the viability of future class-action discrimination suits against large employers.

Scalia pointed out that plaintiffs had filed 120 affidavits reporting discrimination — “about 1 for every 12,500 class members” — and that some states included in the study had no anecdotes of discrimination.

“Even if every single one of these accounts is true, that would not demonstrate that the entire company operates under a general policy of discrimination ... which is what respondents must show to certify a companywide class,” he wrote.

Before the decision, those who support class-action suits said requiring more than the Wal-Mart plaintiffs showed in order to move forward with their lawsuit would free companies to discriminate. So long as the company had an official corporate policy forbidding discrimination, they said, managers could do whatever they wanted in practice.

“This case is not over,” said Brad Seligman, one of the lawyers representing the women. He said individual suits alleging discrimination may proceed, or smaller class-action suits. He said 12,000 women had contacted his office over the years.

“Wal-Mart is not off the hook,” he said.

National Women’s Law Center Co-President Marcia D. Greenberger called it a “devastating decision undoing the rights of millions of women across the country to come together and hold their employers accountable for their discriminatory practices.”

She added: “The court has told employers that they can rest easy, knowing that the bigger and more powerful they are, the less likely their employees will be able to join together to secure their rights.”

Wa-mart issued a statement saying the court made the right decision.

“Wal-Mart has had strong policies against discrimination for many years. The Court today unanimously rejected class certification and, as the majority made clear, the plaintiffs’ claims were worlds away from showing a companywide discriminatory pay and promotion policy.”

The case was brought by several Wal-Mart workers, including Betty Dukes, a Pittsburg, Calif., cashier who began work for the company in 1994 and continues to work there today, as a greeter.

Dukes said that she was “of course disappointed” by the court’s ruling, but that suits against Wal-Mart will be filed nationwide.

“My voice has been heard, but I’m not the only Betty Dukes in this country,” she said.

The case is Dukes v. Wal-Mart.