In what I'll call the executive summary of the Supreme Court's decision to throw out the class action lawsuit alleging sex-based discrimination against the female employees of Wal-Mart, Justice Scalia writes that the plaintiffs must show evidence that the company operates under "a general policy of discrimination," and that the Court does not see this evidence. Well, how smart of sexism that it doesn't operate that way. Today, I'll take a look at the majority and dissenting opinions in this case.
Their claims must depend upon a common complain of such a nature that it is capable of classwide resolution which means that its claim of truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke."
If Wal-Mart had a sign printed in the window of its stores saying that women need not apply, for example, that would be a general discriminatory practice. But Wal-Mart states in its employee handbooks that it operates in accordance with the Equal Opportunity guidelines, and has policies in place that penalize sex discrimination. This is a basic example, but on many different grounds of the lawsuit, SCOTUS refused to acknowledge how sexism itself operates in the American workplace:
- Citing "stereotypical ideas" as sometimes unconscious—US law has a long history of forgiving people with good or neutral intentions, even if their actions cause another harm.
- Proclaiming that acts of discrimination at Wal-Mart sometimes took different forms and were enacted in different ways—Not only is this a reason that SCOTUS decided not to see these 1.5 million women as having class standing, but not expecting that sexism or sex discrimination will be meted out the same way—every time it's enacted—is anathema to the very concept of intersectionality, which understands that context and other kinds of oppressions create markedly different discriminatory circumstances for women. Would Justice Scalia demand that managers engaging in demotions or unfair pay decisions make the same remark to employees when they did so?
- Setting minimum standards for "proof" and "evidence" that are out of reach of the plaintiffs—When individual employees are analyzed by the Court, there are references to work history, any infractions made by the complaining employee, and so on. Not only do these localized moments obfuscate the idea of systematic discrimination by delinking them from each other, but now pressure is put on the employee in a "he said, she said" model. Did someone face demotion because of poor work behavior or as an act of retribution on the part of management? This is exactly the same kind of model for addressing women's complaints that is used in the criminal justice system when sexual assault is alleged. And it once again reinforces the notion that women complain unnecessarily and sometimes maliciously. Therefore, in this way, SCOTUS is using sexist ideas about women's complaints to argue that sexism isn't occuring.
"Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury."
Yes, perhaps this class of 1.5 million women is too big for SCOTUS to wrap its collective heads around, and somehow precedents for managing very large class-action lawsuits don't apply here. But if there is no way for current and former employees to show that the corporate culture of their company gives managers permission to be sexist, then each woman is on her own. According to the SCOTUS decision, if sexism isn't happening at regular intervals—say for some percentage of female employees, as is mentioned by Scalia—then the law can't see it, at least for class action cases.
If only sexism—or people—operated that way. "Refuse to hire every fourth African American woman"—now that would be a bridge SCOTUS would cross. But providing discretionary judgment capability to managers, in the eyes of SCOTUS, isn't where room is made for bigoted practices or attitudes, it's evidence that there is no systematic discrimination at Wal-Mart. This is blind, again, to how oppression happens in the workplace.
These charges about commonality in the class and in the discriminatory practices by Wal-Mart were questioned by Justice Ginsburg, who wrote a dissenting opinion that argued the plaintiffs met the standards of evidence for having a common issue or complaint. But this Court, which has given broad powers to corporations in the past, most notably in allowing a flood of corporate money to affect American elections, overruled arguments like Ginsburg's. She writes:
"Managers, like all humankind, may be prey to biases of which they are unaware. This risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates those stereotypes."
Justice Ginsburg goes on to argue that SCOTUS, in this decision, is using more stringent criteria from an incorrectly applied rule from Title VII of the Civil Rights Act of 1964, and is erring in its decision to overturn the 9th Circuit Court of Appeals ruling to let the class action suit go forward. What seems to be falling through the cracks in this case is whether the law will allow adjudication of stereotyping biases without the intention to discriminate. If sexism wins that battle, what happens to redress for American women?