Supreme Court Lands a Blow to Women

women not paid as muchThe Supreme Court just landed a body blow to women. They sided with Wal-Mart on a class action sex discrimination lawsuit by blowing apart the class action status of the suit. The court was unanimous that the case was too big, yet the decision was split to let the case be reformed for another chance. The court ruled 5-4 against the women of Wal-Mart.

The case was seeking damages for 1.5 million women. In 2001, Wal-Mart had only 14% of women in management and 80% of women in the lowest paid positions. Wal-Mart also allowed local managers to use their own discretion in hiring and promotion decisions. NPR:

When the case was filed 10 years ago, women held two-thirds of the lowest-level hourly jobs and only one-third of the management jobs; and that women were paid on average $1.16 less per hour than men in the same jobs, despite having more seniority and higher performance ratings.

A lower court previously ruled the case should encompass all women who work at all Walmart stores. SCOTUS used the phrase commonality and quoted statistics to claim because 1.5 million women didn't have the same common experience, magically 1.5 million women at Wal-Mart are not subject to systemic discrimination. From the actual ruling:

By contrast, respondents filed some 120 affidavits reporting experiences of discrimination—about 1 for every 12,500 class members—relating to only some 235 out of Wal- Mart’s 3,400 stores. More than half of these reports are concentrated in only six States (Alabama, California, Florida, Missouri, Texas, and Wisconsin); half of all States have only one or two anecdotes; and 14 States have no anecdotes about Wal-Mart’s operations at all. Even if every single one of these accounts is true, that would not demonstrate that the entire company “operate[s] under a general policy of discrimination,” Falcon, supra, at 159, n. 15, which is what respondents must show to certify a companywide class.

Right o. I think anyone who has ever walked into a Wal-Mart or simply think of some examples, sees women working as cashiers and men as managers and isn't it by statistics that this case came about? Just because 1.5 million women Wal-Mart employees did not file a case doesn't mean discrimination is not systemic at Wal-Mart. Sigh.

Justice Antonin Scalia wrote the majority case opinion:

Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury.

Justices Ruth Bader Ginsburg, Stephen Breyer, Sonio Sotomayor and Elena Kagan, all of the women on the court, dissented on commonality.

"The District Court's identification of a common question, whether Wal-Mart's pay and promotions policies gave rise to unlawful discrimination, was hardly infirm," she added. "The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects. Managers, like all humankind, may be prey to biases of which they are unaware. The risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes."

Can you imagine the implications? Let's say all those experiencing injury by a bad drug, must they all experience the exact same side effect for a class action to be certified?

Bottom line, obtaining any justice through our courts just became even more impossible for regular people, women or not.

Bloomberg notes this ruling may cripple future class actions and notes just how many other class actions for discrimination were in the pipe:

Units of Cigna Corp., Goldman Sachs Group Inc., Bayer AG, Toshiba Corp., Publicis Group SA, Deere & Co. and Costco Wholesale Corp. all face gender discrimination complaints that seek class action status. More than 20 companies supported Wal- Mart at the Supreme Court, including Intel Corp.,Altria Group Inc., Bank of America Corp., Microsoft Corp. and General Electric Co.

Without a class action, an individual has pretty much no chance against a large corporation. Corporate legal teams have unlimited resources. They can delay a case and bury an individual in legal fees. A common strategy is also to attack that individual in order to justify the systemic discrimination in the workplace. Only a class action can combat these legal maneuvers.



body blow to women?

Supreme Court Lands a Blow to Women...and trial lawyers

A blow to trial lawyers? Hardly!

This 5-4 decision means that many more independent attorneys must be employed to prosecute each class consisting of aggrieved parties where a particular supervisor is identified as the key element in the discrimination suffered. The difference is that instead of a very few huge law firms and a very few highly-paid hot-dog attorneys speaking for a million, we should have hundreds of smaller law firms and hard-working attorneys going forward with hundreds of class-action cases. Why not?

Bring the juries on! We can do better with juries and trial lawyers than with the 5-4 Supreme Court of the United States!

If anyone doubts this, please re-read 'Gulliver's Travels'! The bigger they are, the harder they fall!

BTW: NO to any limitation of Constitution right of injured plaintiffs to employ attorneys on contingency basis!

I think you blamed the wrong folks here.

The Plaintiff's lawyers clearly over-reached by trying to form such a huge class. Why not a regional class over a more specific time frame? The obvious answer is to maximize their payday.

Had they focused on a smaller more reasonable class these women would have already had their day in court and might have reached a settlement. Of course the lawyers wouldn't have made a very big profit.

The lawyers don't care whether the women were discriminated against. They want the big Wal-Mart $s. Blame the lawyers here. Not the Supreme Court.

blame the system

I can get that the class action was too broad, but the history of the case is they whittled it down previously. That said, the argument of commonality is absurd to me. The use of statistics to try to claim it's not systemic, when anyone with eyeballs can see it is systemic and those same statistics, shown over the aggregate of all employees, prove it is systemic.

What I blame the most is the system and the government. If an individual tries to take action against a corporation, they will be snowed under and probably go bankrupt in legal costs. The government should change the law so it's easier to prove and obtain justice of some sort.

Our civil system amounts to a huge money maker for attorneys and a place to fight patent wars and such. Justice for the individual is impossible.

But your point is made, with a unanimous decision it does look like the ones who put the case together overreached and screwed up.

Thing is, they cannot reform from this ruling and file another modified class action.

Are you sure?

Are you sure on these points?

First, "blame the system" ??? NO, change the system!

Note: I have read only reports and reviews, not the opinions of the Court.

Now, to proceed, this wasn't "a unanimous decision" except on one narrow ruling.

It was 5-4 on the central issue of commonality. The unanimous part was only about the legal consequences (for class certification) of asking for back-pay as well as injunctive relief. I doubt whether plaintiffs ever expected to win on that, but they did think that WalMart could be enjoined to do something about an egregious situation.

I have to agree with you about "justice for the individual is impossible" - at least in the Federal courts. Sad, very sad, but true. Not that "justice" was ever obtainable in any court of law, but any semblance of justice for the individual has disappeared.

Also, I agree about the issue of systemic discrimination, but I can see the rule of commonality too. The thing is that Congress clearly intended anti-discrimination law to address, specifically, systemic discrimination. However, the courts can hardly entertain a claim that just says "Here is something we want done about systemic discrimination that Congress found to exist, even though Congress has not specifically authorized the procedure we are following." This case involved a much larger class than was ever previously certified, so the 5-4 Court was justified to some extent in their judicial activism.

Exactly what would the injunctive relief have demanded of WalMart? A quota? There's precedent against it. A WalMart rule book for anti-discrimination hypocrisy? Big deal. The Court was saying that it was too big for any court to try to supervise or even to frame the injunctive relief applicable nationwide. Well, that smacks of pro-corporate judicial activism, but do we expect anything else of the SCOTUS these days?

I don't believe that Congress has ever addressed the issue of whether the courts may reject a class-action suit on grounds that the plaintiff class is so large that the commonality rule (Rule 23(a)) cannot be realistically applied. And it isn't a simple matter for Congress to address, since it involves the intricate balance of power between the judiciary and legislative - the matter of pleading standards, with clear impingement on Amendment V  and other aspects of the Constitution. What could even a Democratic Congress do that would be proof against undoing by this essentially Republican Court? (I am neither a Democrat nor a Republican, just noting the stalemate as it exists.)

The majority have been criticized as overly broad and, basically, as judicial activists, based on their raising of the bar for plaintiffs to proceed as a class and jumping the fence regarding basic appellate procedural limitations. In other words, they are criticized on the same grounds on which they have been criticized even before the Roberts court (the earlier 5-4 court and the court before that).

What do you expect when you (1) regularly elect enough Republicans to Congress to practice systematic obstructionism, (2) never object to your U.S. senators about the system of Senate collegiality at any price, (3) allow the Supreme Court, in violation of the Constitution, to usurp the authority of the State of Florida to install a POTUS, (4) disregard and don't even know what the Tenth Amendment is, (5) allow voting by very problematic machine counting, where the machines are owned and operated by corporations (heading toward one single corporation), (6) fail to form or support a real alternative to the two-party system, and, (7) fail even to begin to enact a Constitutional amendment to correct the campaign finance laws that have been created by various Supreme Court decisions over the past 3 decades?

Oh well.

Maybe I am inaccurate here, but this is how I think the EEO system works: Certain groups are identified by specific legislation as aggrieved classes with standing to file claims based on discrimination in employment. That is, each individual within each class (women, African-Americans, people over the age of 55, etc.) has standing to bring a claim for injuries suffered as a result of unlawful discrimination. The fact of systemic discrimination, although clearly a finding of the Congress in drafting the legislation, confers no automatic standing on any group that files a class action. it appears to be entirely a matter of the Court's interpretation of Rule 23 of the Federal Rules of Civil Procedure -- fascinating reading

Whatever, the rights and wrongs may be, this case appears to have been decided with much better authority than was Bush v. Gore, for example 

When you say "the government should change the law," I agree but which government is that? Each state has its own Equal Employment institutions, there is the federal EEOC, there is Congress, there is the Executive (Executive Orders), and, there are the courts (state and federal). Yes, hypothetically Congress could act ... but let's get serious ... this congress? Or do you expect state governments now preoccupied with their very survival to take up an EEOC issue with vigor? Is this issue of greater importance than redistricting and could it be used as a distraction to draw our attention away from redistricting? -- or as a distraction to draw our attention away from the Senate's failure to consent to the appointment of Obama's nominees to fill four (I think) long-standing vacancies on the 9th Circuit.

And the White House ... it's doubtful how much authority the President has over EEOC regulations. That's the whole point of the EEOC, isn't it? -- to take policy decisions implementing EEO law out of the realm of politics?    So, really, the only practical course for the plaintiffs is damn the torpedoes, full steam ahead ... which leads me to this point:

"They cannot reform from this ruling and file another modified class action."

Maybe, but I don't get the grounds for what I think is your way too broad conclusion.

The way I read it, plaintiffs  can file hundreds of different smaller class-action complaints, each naming a particular supervisor or connected group of supervisors (although the latter situation would be more problematic than the former). Why not? We might have ten or twenty plaintiffs, splitting the filing fee and agreeing to make a name for a young attorney fresh out of law school and eager to go at it right up into courts of appeals. If we are saying that supervisors generally acted willfully and wrongfully but with WalMart gross contributory negligence, then where's the problem with naming one supervisor, along with WalMart? See what happens. Maybe supervisors will sue WalMart. Maybe WalMart will start firing the supervisors who are being sued. Full employment for attorneys fresh out of law school with no connections into the big firms! (And some of them are even girls!)

Sure it takes some time to go through the stages required by anti-discrimination law, but there are shortcuts to get to a jury trial, and you have the advantage of all the research done already and available to you in the record of this case from before the 9th Circuit on up to the SCOTUS. All your citations are there for you. All kinds of statistics and interviews, and so forth. Go directly to the jury, do not pass GO. It could be the Lilliputians against Gulliver, wrapping WalMart up with thousands of little threads.

This is just the end of the road for one case, identified by the no-longer-allowed class of millions. Plaintiffs can hardly have been enjoined from filing new cases based on parts of the underlying matter. If that's the intent and effect of this ruling, please let us know! That would be right up there with Citizens United and Bush v. Gore!

Back to economic issues - full employment

To me, the problem with all EEO stuff is that we don't even have a generally accepted goal of full employment (and can't have until we change the globalism agenda). What can we hope to accomplish? Assuring equal rights to permanent unemployment and homelessness? Putting some people out of work for the duration of the Great Recession, for the sake of bringing others in to replace them? The replacements will, of course, be paid less, more likely to be H1B types, and, more compliant with corporate authority. No net improvement overall.

that is the 5-4 split, any class action is denied

The case cannot be readjusted to bring about a class action and that is where the court split.

They ruled unanimously it was too broad but it's the split decision where it's most damning to workers.

It's bad because the burden of proof was changed to be on the plaintiff and so for individuals, corporate attorneys try to pick out that person's flaws to justify whatever and of course every individual has flaws, whereas a group, it becomes much more obvious there is discrimination.

Or SOME class actions are denied ???

Are you saying there will never again be a successful class-action suit until Rule 23 is amended by Congress? Or until something is done, one way or another, about the 5-4 majority? Either way, I don't believe it, although I would like to see Rule 23 amended and I would like to see the 5-4 disappear down the sanitary drain system of history.

Of course, in a sane world, Congress would quickly act to amend Rule 23, just as in a sane world, we would not have a 5-4 majority Court usurping the authority of the State of Florida to cast electoral votes according to Florida law.

Meanwhile, although this one case is at the end of the road, I still think that at least some plaintiffs can make out solid cases, technically de novo but building on all the factual stuff and legal work in the record for the dead case. Such plaintiffs (aggrieved parties suffering monetary injury due to unlawful discrimination) can proceed on an injunction or declaratory basis, which hopefully will allow them to recoup their filing fees and even their attorney fees. After that, with a finding of discrimination, they go back individually to their favorite EEOC and go after monetary relief, with the moral force of a jury verdict behind them. When WalMart appeals the EEOC judgements to district courts, assuming that they do, I doubt that the plaintiffs will have any burden of proof at all, except to show that the EEOC's calculations of damages were realistic and within the law.

The thing is to find venues where you can quickly get to a jury -- WalMart unable to side-track at an early stage. These corporate big dogs think they rule all the court houses in the land, but they don't. At least not yet. There are plenty of small-fry attorneys eager to speak to a jury. They just cannot afford to pay filing fees, and they need to eat and pay rent until their clients are awarded costs.

But maybe I am all wet about this whole thing. It's just my opinion. I'm not personally involved in any capacity, although I probably know at least one of the plaintiffs.

As for discrediting the plaintiffs one by one, I really think that a class action is still possible for smaller groups -- so the defendants would have to discredit maybe from 20 to 100 women in defending one case. Such a strategy would be self-defeating because, right there, the pattern of discrimination would become obvious. I can't see that the precedent is for all class-action suits of whatever scale or specificity.

If a hundred smaller cases are filed, naming particular supervisors, what is WalMart going to do? Abandon all their supervisors? Relocate them, like in some kind of witness-protection program, out of the country? Maybe so, but it will be a devil for them. The force of rumor spreading locally person-to-person should not be underestimated.

At the least, if thousands of these plaintiffs persevere, WalMart will find it very difficult to defend and will probably start offering generous settlements. Or not. But, if not, then what can they do to cut their losses? Hire all the attorneys that are representing plaintiffs?

One way or another, at least a thousand of the plaintiffs have considerable leverage at this time, if they want to use it and are situated so that they can.

So, that's what I would like to see. I suppose it's just the devil in me. In a related area, I would like to see people working on the practice of firing people just before their pensions become vested. I hear about that all the time. Does anybody these days work the ADEA -- Age Discrimination in Employment Act?

Of course, Congress could and should amend Rule 23, but we know that won't happen until 2013 at the earliest ... and even then ...

The bottom line is, if we could ever elect a congress that actually represents the people, we badly need a new Judiciary Reform Act.

Blame game is counter-productive unless it is WalMart

We don't really know about the motivations of the attorneys. Of course, anti-discrimination lawyers want to be paid, but doesn't everybody want to get paid. Do you think that the term "legal work" is a misnomer? No, it's work!

When you represent that the blame should either be on the Court or on the lawyers, you let WalMart off the hook, don't you?

Alexander Karandreas Looks

Alexander Karandreas Looks like a win for big corporations. Do you believe the law suit is justified?



No thanks

I looked at the poll - stupid question, not even about the 5-4 decision. A distraction from real issues.

The court of supreme injustice

I will be reading the opinion when I get a chance. Specific comment will await that happy process.

In general, this Supreme Court, Scalia in particular, pervert what most of us might expect from justice. Scalia supports invoking timing rules for admitting new evidence in murder cases with a death penalty sentence EVEN WHEN that evidence may be exculpatory. Guess that makes him a statutory ... well, this is about the post. Fine work, promptly delivered Robert.

This ruling may be a beard for the pending class action suits against Wall Street and the big banks. Make this ruling then tell citizens, "Oh, sorry. We already ruled that your case doesn't fit the bill."

We live in a lawless nation where the law is used as one of the control mechanisms for the ruling elite.

Excellent, Michael Collins

Yeah, I should probably have refrained from commenting without reading the opinions!

What sounds likely to me is your suggestion about that this is going to provide cover for class action suits against Wall Street, banksters and other big international players. Although almost unimaginable, the ruling that you envision could really be the next example of the flagrant injustice for which the Roberts court is becoming known.

The Court will find a Constitutional provision assuring that some dollars are more equal than other dollars.

All nine justices held the

All nine justices held the class should not have been certified. The rest is a secondary issue.

I don't think so

Except for the 5-4 ruling, it could have been certified but without the claims for back pay. I think that if the minority view had prevailed, the case would have been remanded and WalMart would have been enjoined to do something or another. Also, individuals would be able to proceed with individual claims for back pay without having to litigate everything all over again. Some of the plaintiffs would have been much better off than they are.