Discrimination with a Smile

When the economic bubble burst in 2007-08, the term "Too Big to Fail" became popular. Apparently, there are now companies that are "Too Big to Sue".

The Supreme Court of the United States ruled on Monday that the 1.5 million women that were attempting to file a class-action suit against Wal-Mart for sex discrimination can not file as a class and must file separately.

First, the disclaimer: I am not a lawyer. My knowledge of the law is limited. I am going off of what I know, what I have read, and what I can presume reasonable on this. Okay, moving on...

I have so many issues with this. First off, individual discrimination is exceedingly difficult to prove unless it is blatant and in your face (which is rare. People have gotten clever about discriminating in more subtle ways). Secondly, these women and their lawyers went to painful lengths to gather so much evidence, including hiring sociologists to organize the womens' anecdotes into hard data and uncontested stats that clearly show the widespread patterns the women seek to address. Third, the SCOTUS made this decision with only certain evidence brought forth (not all evidence was presented) and made a decision that blows my mind.

Scalia concludes that (even in advance of a lawsuit) the women could not show that Wal-Mart "operated under a general policy of discrimination." That's partly because "Wal-Mart's announced policy forbid sex discrimination" and partly because he rejects the plaintiffs' claim that Wal-Mart's "policy" of allowing discretion by local supervisors over employment matters constitutes a policy at all. As Scalia sees it, in giving local managers so much leeway in making personnel decisions, Wal-Mart actually established "a policyagainst having uniform employment practices." - Slate 

 Oh, Scalia. The same man that claimed crosses are not religious symbols, and merely mark graves. He infuriates me and lives in some alternate reality. His comments are classic examples in not "getting it." He doesn't get that every company in this country is required by law to have a non-discrimination statement that includes sex. He doesn't get that despite these statements, gender discrimination still happens, and that companies have gotten clever about it. He doesn't get that even if in an ideal world, "left to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion," would be a perfectly reasonable statement; but in the reality in which we live it is not the case. People have prejudices, including unconscious ones. We act on those prejudices.

Scalia assumes that people don't act on their prejudices. He also assumes that because Wal-Mart has a written policy forbidding sex discrimination, that such a thing simply wouldn't occur! Which is odd, since he says two things that appear contradictory to me: The first being that since Wal-Mart gave near-autonomy to managers at the individual store level, that there was no store-wide pattern (despite the evidence) of discrimination. The other being that since Wal-Mart has a policy against sex discrimination, it must have the over-reaching capability to enforce that policy. So in one ruling, he has stated that Wal-Marts hands are tied in overseeing it's store managers' practices, but is capable of overseeing and admonishing them for policy violations in those practices? You can't have it both ways.

Elizabeth Wydra over at Huffington Post illustrates why Scalia and the conservative majority blocking this from being a class suit at all, forcing the women to file separately, has some major implications:

This is a big deal. Class actions are crucial for victims of discrimination or other corporate misconduct who may not have the means to bring their own individual lawsuits -- including many of the Wal-Mart employees who earn modest wages. Joining individual claims together also allows for a fuller picture of widespread patterns of discrimination or fraud, and provides a greater opportunity to fundamentally change a corporate culture of discrimination.

While the decision to not let the women file under a certain clause (and that lower courts should not have let the case progress under that clause) was unanimous, the liberal minority were willing to let the women refile under a different clause. The conservative majority blocked the class suit entirely. Steve Leser of Political Theater explains this from a law perspective, and why the current law is inadequate:

The reason is that the standard you need to meet is pretty high. You need to show a memo or email or some directive from corporate indicating that what is happening is the policy of the company. Here is where the catch 22 comes in. Unless you have a class action suit, it is very difficult to get the kind of discovery (the legal term for ability to compel a company to turn over emails, documents, etc), you need to prove a case like this. So you cannot get a class action suit certified without the evidence and you cannot get the evidence without a class action. The common man is stuck and once again the large corporation is holding all of the cards.

This is my main concern with what happened here. The law is inadequate. I have no doubt that the justices applied the law properly. The catch 22 I illustrated above is infuriating. Added to that is that the burdens of 23(a)(2) are obviously too high. If a company has a culture that has fostered the companywide discrimination that the women who brought suit were able to show without a dispute, it should be held responsible. If the law and legal system cannot do that then the law and legal system have failed. Adding insult to injury is the way Justice Scalia phrased the problem with the plaintiff's case in his opinion, “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 and the conservative majority of the court are setting unrealistic standards for what constitutes corporation-wide discrimination. As far as they are concerned, unless the entire executive management of Wal-Mart were to come forward saying "Yes! We are misogynists and  we refuse to give women equal standing or opportunities in our company!", then there would be no way they would let this case progress. It Scalia's world, women aren't being discriminated against; they just simply don't know their place.