How the Supreme Court Broke My Heart
June 22nd, 2011

The Supreme Court hates women.

I realize that’s not exactly true.  But that’s what it felt like I was reading when I learned on Monday that the Supreme Court had thrown out the class-action lawsuit against Wal-Mart filed by 1.6 million women claiming gender discrimination.  It broke my heart.

My understanding of the case is that it came down to single-store hiring discretion.  (Actually, with a 5-4 decision it came down to ideological lines, but that’s another discussion.)  Apparently store managers were given a great deal of latitude in their hiring decisions, which prompted the majority justices to rule that the 1.6 million plaintiffs weren’t eligible to be grouped together in a single class-action suit.  This riles me.

A giant, multi-national corporation somehow – either systematically or inadvertently (and for the record I don’t believe anything at Wal-Mart happens by chance) – managed to let hundreds of thousands of women earn less pay and exploit less opportunity for advancement and somehow emerged blameless?  I just don’t understand it.  Even if each individual store manager discriminated of his own accord, how is the corporation not liable for the behavior of its store managers?  What if each of the store managers engaged in racial discrimination?  What say you to that, Justice Thomas?  What if the store managers sexually harrassed teen employees?  What then, Justice Scalia (father of nine children)?

In a scathing editorial on The Huffington Post author Peter S. Goodman suggests that it’s easy for U.S. Supreme Court justices to disregard the concerns of 1.6 million underpaid women because they are not among them.  He writes, “In its appalling decision in the Walmart gender discrimination case handed down Monday, the justices supplied future historians with a brilliant symbol of how the United States has essentially become a giant gated community enjoyed by the powerful, with most of the citizenry living outside and struggling to nourish themselves.”  Justice Scalia’s kids aren’t working overtime at Wal-Mart, so why worry about the kids who are?

Beyond his cultural commentary Goodman points out that Wal-Mart’s power as the largest retailer in the world lies in its ability to negotiate with factories, suppliers, distributors, and transporters as a single giant entity.  Wal-Mart store managers do not negotiate for the product on their shelves.  The corporation negotiates on behalf of all its stores.  But yet, when employment policies come under scrutiny the corporation is absolved of any culpability.  Goodman comments,

“[E]ach Walmart is its own separate unit, for the purposes of the lawsuit. Walmart gets to be a behemoth when it is setting the prices for the patio furniture and volleyball sets that it purchases from factories in Mexico and China, but when its employees want to band together to address alleged abuses in the court system, suddenly the Walmart corporation might just as well be a collection of little mom-and-pop shops that happen to have the same name.”

As I said, it breaks my heart.

Moments like this one do not inspire my confidence in my country.  The plaintiffs in the Wal-Mart case are not being treated fairly by their employer.  And when they rose up to try to represent themselves their government failed them.  I doubt that this is what the founding fathers had in mind when they decided that King George was a tyrant and wanted a life free from the oppression of a ruler who didn’t represent or consider their interests.  In that vein, whose interests does our government represent these days?  Corporations?  Lobbyists?  Shareholders?  I wonder how today’s Supreme Court would rule on slavery.  Perhaps more realistically, I wonder how they would rule on the sex abuse scandals in the Catholic Church.  Actually, I’m not sure I want to know the answer to that one.

Perhaps my disappointment at this ruling is making me a bit melodramatic.  I realize that one bad decision by the court doesn’t mean that the whole country is falling apart at the seams.  The Dred Scott case was eventually overruled by the Fourteenth Amendment 11 years later.  Perhaps in 10 years another 1.6 million women will try again with better results.  Our nation has recovered from mistakes bigger than this one.  I can only hope we’ll come to our senses yet again.

10 Responses to “How the Supreme Court Broke My Heart”

  1. Laura H. Says:

    Agreed. Shame on Justices Scalia, Roberts, Kennedy, Thomas and Alito. Shame on Walmart. Let’s hope this gets enough buzz to make people stop shopping at Walmart.

  2. Gale Says:

    Laura – Unfortunately I worry that this will have the opposite effect. That is, that the ruling will give people license to believe that Wal-Mart has actually not done anything wrong, and to continue to shop there guilt-free.

    Also, as I’ve thought more about this ruling I’ve felt compelled to clarify that it’s not just because the suit was brought by women that I had such a strong response to it. Much like Goodman points out in his HuffPo article, it’s the Court’s use of a technicality to bolster big business and screw disadvantaged people that bothers me so much.

  3. Cathy Says:

    Full disclosure – I haven’t read up on this and the most I heard was a little news blurb on my daily commute. However, when I heard the news that the Supreme Court denied the suit as a class action, it did not surprise me. It didn’t surprise me because I worked in the class action arena for over 7 years. My immediate guess was that each woman’s promotion or lack thereof was related to individual circumstances and it would make it extremely difficult to group altogether, Add to that, this country’s court system has gone on anti-class action lawsuit stance for the past several years.

    I don’t agree with WalMart’s practices in many areas but as a form of law, I’m not sure I can disagree with the Supreme Court and the way the law of class action is applied.

  4. Gale Says:

    Cathy – I’m so glad you chimed in here, particularly given your background in the class action arena. The logic you cite (that each woman’s case was influenced by individual circumstances) is exactly the reasoning cited by the majority in this case. And I understand that this situation is, perhaps, more fragmented than many class-action suits. Nevertheless, when this many plaintiffs come forward with the same grievance I find it hard to believe that there was not some systemic influence at the corporate level that played out on an individual basis for female Wal-Mart employees nationwide.

  5. Cathy Says:

    Gale I need to follow up – we live in a very litigious society. Given the opportunity to jump on the bandwagon in the hopes of a big payout are common – and doesn’t mean there was legitimate offense. Remember anyone can sue anyone. In my experience, the successful class actions were where a policy or calculation – a systematic method to violate the law – are proven. Each woman’s personal promotion or lack thereof, would necessarily be tied to individual performance reviews done by their manager. It is hard for me to think of anything that was systematic applied to all women – unless, of course, it was their gender. The unfortunate truth is that there are too many “outs” in this case and why it cannot stand as a class action.

    And again, that’s not to say that I disagree with the plaintiffs’ theory.

  6. Gale Says:

    Cathy – Thanks for the second comment. I’m getting such an education here! I understand what you’re saying about the burden of proof for a class-action suit. So my next question is, then what? What if there is a culture of discrimination? Is the larger corporation in any way liable for that, even if it’s in something smaller than a class-action suit? Or is each individual woman still on her own to prove discrimination in her specific case?

  7. BigLittleWolf Says:

    “A culture of discrimination” – so it’s a corporate culture within our larger culture, no?

    Heartbreaking, infuriating, and illogical – as are the loopholes in so many areas of our judicial system.

  8. Cathy Says:

    A little late on the follow up but I think, in general, yes, each must prove her own case. Similar to price-fixing in the oil industry – of course the magnates say they don’t do it – and there’s no proof – but it is common belief that it happens.

  9. Jennifer Says:

    History is riddled with mistakes like these. It is sad but true. I find hope in the fact that we continue to progress forward, to learn from our mistakes, and to eventually correct them. When it comes to women though, I see mistakes being constantly repeated. No matter how much progress we seem to make, I see us also falling back into old traps. It is disheartening to hear news like this and know that it is not just one exception but more like the rule. The only conclusion that I can draw from all of this at this moment is that our government is representing and protecting our culture. And our culture is in desperate need for some serious change. But cultural change takes time. And as far as it relates to the Supreme Court, many of them are old and set in their ways. They are resistant to change and want to protect the letter of the law from social whims. In some ways, this is a good thing, but when it comes to furthering social progress, it can be quite awful.

  10. Gale Says:

    Jennifer – I really like your comment about the tenuous juxtaposition of protecting the law from social whims vs. fostering social progress and casting off outdated institutions. Both are important, but it can be frustrating when the two come to a head. As you said, hopefully our political system will eventually see this mistake for what it is and make it right. In the meantime it’s hard to find a silver lining for these female workers who can’t seem to catch a break.