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Is Wal-Mart too big to sue? Are female employees in American corporations collectively able to claim discrimination on the basis of gender?
In this week's landmark class action decision in the Dukes v. Wal-Mart Stores, Inc. case , the answer to the first question was a resounding yes, and the second entirely unclear. The group of female employees headed by Pittsburg, California, Wal-Mart greeter Betty Dukes -- who sought damages for alleged decades of inequitable salaries and advancement affecting millions of women -- had nothing in common but their gender and employer so their case couldn't go forward.
Justice Antonin Scalia, writing for the majority, said that because Wal-Mart has a non-discrimination policy, the company did not discriminate against the more than 1.5 million women represented in the suit. Wal-Mart conveniently gives regional and local managers the equivalent of states' rights. They can run their stores and treat their employees however they want. Justice Scalia said that managers wouldn't discriminate against women because it's against company policy. And if they did? It wasn't Wal-Mart's fault.
Thank you, Justice Scalia.
Or not.
At issue in this case was Wal-Mart's systemic discrimination against women in terms of salary and promotion. The Supreme Court essentially said that it couldn't be proven, and Scalia said there were too many women to consider within a system that simply would not discriminate because the company expressly prohibited it. In her dissent, Justice Ruth Bader-Ginsburg said, "Hello, reality" .
"Women fill 70 percent of the hourly jobs in the retailer's stores but make up only 33 percent of management employees. The higher one looks in the organization the lower the percentage of women."
She also noted that statistics provided by the plaintiffs, and uncontested by Wal-Mart, show that women "are paid less than men in every region" and "that the salary gap widens over time even for men and women hired into the same jobs at the same time."
Dukes, the Wal-Mart greeter who brought the case, says she'll keep going. While the Court said that this many women could not be treated as a group in a suit of this scope, there are opportunities for Dukes, the hundred women who provided affidavits, and any of the million-plus, to pursue litigation in smaller groups or individually. But that could prove hard for many of the women because of limited legal resources.
Would Dukes have been more successful going it alone? Maybe. Are there reasons why it may seem unwieldy to class 1.5 million people, rather than smaller groups with more specific concerns? Sure.
But saying that sex discrimination doesn't exist because it's not supposed to? For now, Wal-Mart will keep doing what it does, and similarly large corporations everywhere can breathe a little easier.
