What the Wal-Mart Decision Means for Fair Pay
The U.S. Supreme Court ruled unanimously that female Wal-Mart workers could not carry out a class action lawsuit against the retail giant. But the court was split 5-4 on whether the women had grounds for a discrimination claim.
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.
While the fight for fair pay continues, women's rights groups are in agreement that not being able to move forward as a class action lawsuit will make it difficult for women to hold their employers accountable.
Fatima Goss-Graves, vice president for education and employment at the National Women's Law Center, said that "what keeps me up at night" is the possibility for other companies to hide behind this ruling and continue to discriminate against their female employees.
"I will say it was incredibly disappointing," she told bloggers on a conference call on Monday. "In this economy, women make up 4 out of 10 family breadwinners, and 6 out of 10 co-bread winners. That there would be a hole to challenge wage discrimination is even more distressing."
While the women of Wal-Mart, headed by Betty Dukes, could pursue individual cases, Goss-Graves said there are major disadvantages to this path. For one, women don't know what their peers make and some corporations even forbid workers from sharing this information with each other.
Particularly for low-wage workers "where every dollar is going to count," obtaining an attorney and pursuing a case -- this case took 10 years! -- is too costly and unobtainable.
One silver lining is that in light of this ruling, there may be more pressure on the legislature to pass the Paycheck Fairness Act.
"It is important that policy makers look closely at this decision and look for fixes for it," Goss-Graves said. "In the last Congress, the Paycheck Fairness Act made it far. It passed the House with bipartisan support and passed the Senate short of two votes for a filibuster."
Said the National Organization for Women in a released statement:
Today, a Supreme Court majority ruled against women by siding with the country's largest employment discriminator, saying Wal-Mart, essentially, is too big to sue. The brave women, led by Betty Dukes, who stood up to Wal-Mart at great personal sacrifice, were told simply they're on their own.
If the number of bloggers, including men, who were on the conference call on Monday is any indication, Betty Dukes and the brave women of Wal-Mart are NOT on their own. "We will continue to fight and stand behind these women," Equal Rights Advocates Executive Director Arcelia Hurtado said.
It is unbelievable we still have to fight this battle in the 21st century. But it is important for our daughters -- and our sons! -- that we do. Stay tuned for more developments to this story.