As anticipated, the Supreme Court ruled unanimously in favor of Wal-Mart in an important workplace discrimination case. The Court divided 5-4 in adopting more stringent standards for future cases. From the outset, I viewed this as an extremely bad case that would likely make bad law for those fighting workplace discrimination. It now has.
In Wal-Mart v. Dukes , all of the justices agreed to reverse the United States Court of Appeals for the Ninth Circuit in the case which would have affected up to 1.6 million women and billions of dollars in damages.
That was the easy part. The justices, however, divided on the elements needed for future such cases. It divided along ideological lines with Justice Antonin Scalia holding that the court must require common elements to be the basis for such class actions. Scalia’s decision also struck hard on the standard, including the rejection of the type of statistical analysis used in this case:
Even if they are taken at face value, these studies are insufficient to establish that respondents’ theory can be proved on a classwide basis. In Falcon, we held that one named plaintiff’s experience of discrimination was insufficient to infer that “discriminatory treatment is typical of [the employer’s employment] practices.” 457 U. S., at 158. A similar failure of inference arises here.
Scalia’s opinion also rejected the ability to seek backpay in the case. He concluded:
The Court of Appeals believed that it was possible to replace such proceedings with Trial by Formula. A sample set of the class members would be selected, as to whom liability for sex discrimination and the backpay owing as a result would be determined in depositions supervised by a master. The percentage of claims determined to be valid would then be applied to the entire remaining class, and the number of (presumptively) valid claims thus derived would be multiplied by the average backpay award in the sample set to arrive at the entire class recovery—without further individualized proceedings. 603 F. 3d, at 625–627. We disapprove that novel project. Because the Rules Enabling Act forbids interpreting Rule 23 to “abridge, enlarge or modify any substantive right,” 28 U. S. C. §2072(b); see Ortiz, 527 U. S., at 845, a class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims. And because the necessity of that litigation will prevent back- pay from being “incidental” to the classwide injunction, respondents’ class could not be certified even assuming, arguendo, that “incidental” monetary relief can be awarded to a 23(b)(2) class.
This is also a big victory of Chief Justice Alex Kozinski, whose views are expressly embraced by the majority on the Court.
Writing for the dissenting justices, Justice Ruth Bader Ginsburg insisted that, despite the flaws in the case, there were sufficient facts alleged to maintain a class action based on “Wal-Mart’s [policy of] delegation of discretion over pay and promotions.” She wrote:
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. The prac- tice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce dispa- rate effects. Managers, like all humankind, may be prey to biases of which they are unaware.6 The risk of dis- crimination is heightened when those managers are pre- dominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes.
The standards clarified by the majority would make it extremely difficult to bring such a massive discrimination case in the future, particularly where businesses delegate these decisions to local stores. While the dissenting justices saw evidence of a “culture” of discrimination, that will not do in the future. Indeed, many businesses reading this opinion are likely to reaffirm the delegation of such questions to local store managers to further insulate the company from nationwide class actions. It does not mean that it will bar class actions. It only means that it will practically confine such cases in the future.
Here is the opinion: 10-277
Source: Yahoo
Jonathan Turley
Woosty, I am on the same wavelength with you posting which is eloquent and heart-felt. I was searching for a link about WallMart sewing MiUSA labels into their cloths and was overwhelmed, simply overwhelmed, by stories about the female-staffed sweatshops all over the world making cloths for WallMart and others. I gave up because some of the stories were so stomach churning.
If you collected the crime stats against women in any big city over the course of a week and mislabeled the file with any other discernible group instead of ‘crimes against women’ city hall would be appointing a special commission to find out what was going on and how to stop it.
Rant finished she takes her soapbox and heads for home.
Woosty
“In some countries, women are so disparaged and unprotected….they tie bombs on them when they are 9 years old and send them off to be blown up. There is little difference in my mind except that the 9 yr olds will be spared a life of cruelty and usary…..”
So being a suicide bomber is preferable to working at walmart? Are you shitting me?
lottakatz
1, June 20, 2011 at 11:00 pm
When the law divorces itself from the people the people will ignore it or develop a passive-aggressive relationship with the law. There’s an un-organized, spontaneous movement in Greece right now that reflects exactly what you are concerned about:
‘I won’t pay’ movement spreads across Greece
In light of austerity measures, citizens ignore tolls, transit ticket costs, even bills for healthcare ”
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I had a lovely response to this last night lottakatz, certainly not in disagreement….but my ‘new’ keyboard sucks and it went ‘poof’before I could post it…in any event, I think people are very angry…(perhaps that is what is behind all the new prisons…) but most of the population are decent and know how to control and regulate thier anger. Worse outcome is that the inobjective application of law by design has resulted in the pillars not being ABLE to pay all the tolls, all the taxes, all the market speculations, and all the rest so a few greedy buttheads can coast by riding a wave and then sticking the bill…and at the end of the day, those who EARNED real money will be burnt by those whose egos cannot stand aside and admit that 2 boats 5 houses $1000.00 suits, and expense accounts are the cause of other peoples: …no healthcare, no education, no homes, living in cars, kids abused, threats by banks and creditors…and so on. Waldaddy is a product of market protectionism…if it’s really just that the case law wasn’t substantial enuff to hold up in court…well I don’t believe that….things fall down by mistake and are picked up by effort…those thngs that are allowed to erode and never set right….that is by design. In some countries, women are so disparaged and unprotected….they tie bombs on them when they are 9 years old and send them off to be blown up. There is little difference in my mind except that the 9 yr olds will be spared a life of cruelty and usary…..
culheath
1, June 21, 2011 at 4:34 am
If I can hire women who are as productive as men for a lower wage, why wouldnt I hire 1.6 million of them, make a bundle on the higher profit margin, and surround myself with women instead of the ugly sweaty men im assuming they hired instead?
“Are you suggesting that women are incapable of being ugly and sweaty?”
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Agh!hahahahahahahahahahahhahahaha!…damit….coffee…hahahahahahahahahahha!dammit……..
rafflaw
1, June 20, 2011 at 9:50 pm
It may have been a bad case to bring to the Supremes, but I am not sure there will ever be a good case to bring to these Supremes when a corporation is involved.
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http://www.youtube.com/watch?v=a6H3_itAHGY&feature=related
[youtube http://www.youtube.com/watch?v=a6H3_itAHGY&w=425&h=349%5D
Frank, You’re correct in your assertions from everything I’ve read. Killing all nearby retail business to capture as many customers as possible was never an accident, it was part of their marketing plan. I also recall that at one point they were having “Made in USA” labels sewn into their clothing though it was actually being manufactured in Asia. They are scum. I’m not a customer.
If I can hire women who are as productive as men for a lower wage, why wouldnt I hire 1.6 million of them, make a bundle on the higher profit margin, and surround myself with women instead of the ugly sweaty men im assuming they hired instead?
Are you suggesting that women are incapable of being ugly and sweaty?
If I can hire women who are as productive as men for a lower wage, why wouldnt I hire 1.6 million of them, make a bundle on the higher profit margin, and surround myself with women instead of the ugly sweaty men im assuming they hired instead?
lotta – lets add also that these fine masters of the universe made their bones destroying small town businesses. They would over build, putting multiple stores too close together. The local businesses in the surrounding towns would all die & then Wally would close all but one store, which was all the area could have supported but would not have completely killed the competition.
And then there is the relocation of work to China. Not just as a result of their drive for low costs but actively rejecting American companies efforts to get contracts. The garment works went to Wally & asked what it would take for them to get a contract to supply T-shirts from a plant in NC. Wally told them there is no way, no price level, no quality level that they would accept from the American company.
Also, Wally has been caught using undocumented workers as overnight cleaning crews. Locked in the stores, paid substandard, even by Wally standards, wages & threatened with deportation if they complained.
And, of course, most relevant to this case they have been found guilty of sex discrimination in the past.
And some people wonder why Wally is hated, why people assume the worst of them and why they are disappointed at this ruling.
Rafflaw: “It may have been a bad case to bring to the Supremes, but I am not sure there will ever be a good case to bring to these Supremes when a corporation is involved.”
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It’s been years since I have had to do any reading or work on EEO law let alone class actions so I have nothing to say of merit on the validity of this case. If Mike A. says it’s a non-starter based on its breath I tend to believe him in the absence of a compelling counter.
As a just plain ol’ citizen that reads the news though, I sure find myself in agreement with your statement. Well put.
Woosty: “…. How long before people no longer pay any attention to the law because it has become the enemy of th ‘law abiding’ citizen???”
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When the law divorces itself from the people the people will ignore it or develop a passive-aggressive relationship with the law. There’s an un-organized, spontaneous movement in Greece right now that reflects exactly what you are concerned about:
‘I won’t pay’ movement spreads across Greece
In light of austerity measures, citizens ignore tolls, transit ticket costs, even bills for healthcare ”
“I don’t think it’s part of the Greek character. Greeks, when they see that the law is being applied in general, they will implement it too,” said Nikos Louvros, the 55-year-old chain-smoking owner of an Athens bar that openly flouts the smoking ban.
“But when it isn’t being applied to some, such as when there are ministers who have been stealing, … Well, if the laws aren’t implemented at the top, others won’t implement them.”
http://www.msnbc.msn.com/id/41723432/ns/business-world_business/t/i-wont-pay-movement-spreads-across-greece/
2manyusernames: “Of course many here have the silly and ignorant knee-jerk hatred towards WalMart and are sure of their guilt.”
If :
you’re one of the most wealthy companies in the world,
4 of the 10 most wealthy people in the country are owners of that company,
that company has wage and hour policie’s that make it necessary or reasonable for that country to hold employee class’ that teach employees to use state programs for people at the lowest levels of the income pool,
then:
You as a company and owners are lower than whale shit and deserve pitchforks and torches on your best day.
It may have been a bad case to bring to the Supremes, but I am not sure there will ever be a good case to bring to these Supremes when a corporation is involved.
General Counsel
1, June 20, 2011 at 6:14 pm
I do not understand why you little people complain so much. Just be glad you got a job, not everyone is so lucky.
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what little people are you referring to and how do you know they have a job? That is the same kind of shoddy thinking that has created the state of anti-justice that exists today. It never fails….people with tiny minds and shitty arguments never fail to call names and assume the arrogance in thier attempt to ‘get on top’ in the dept of argument…. blecho dudley….Women are a ‘class’ of citizns…voting r ights and abortion rights were ‘class’ actions were they not? Is the concern that the group is too unweildy to present the facts adequately? Maybe that large a group makes for a HUGE statistical scew that screams discrimination…. Because when you are talking about Wal-daddy you are talking about a monstrously huge entity and why wouldn’t it be considered that percentagewise 1.6million is not such a big class after all? Maybe Waldaddy is just too big to play fair?
I also disagree with Justice Bader’s dissent. “Delegation of discretion over pay and promotions” is simply too fluid a standard from which to create a class. I’m not sure it would even meet the requirements of fundamental due process.
I don’t know what the plaintiffs’ lawyers were thinking when they filed this suit, but they should have anticipated the result. I agree completely with Prof. Turley on this one: terrible facts providing the Supreme Court majority the opportunity to put in its collective two cents worth in order to make certification more difficult in the future. Bad strategy from the beginning.
We are certain of that Kay.
Ha ha, Frank you are a very funny boy. “Too stupid”? I may not be as intelligent as you are but at least I am as intelligent as the Supreme Court. All the judges agreed with me that the ruling should be reversed.
The standard I am suggesting is that the class group should consist of people who were victimized. Surely you don’t think that every single one of or even a majority of the 1.6 million women who worked at Walmart were discriminated against. Nor does WalMart have a policy discouraging the promotion of women. Have their been individual cases of discrimination by local supervisors? Yes as with any company. They’re cases of women not gettin promoted and cases where they got promoted because of the prejudice of their local supervisor(s). That doesn’t mean every single woman has been harmed. It certainly doesn’t mean that WalMart is breaking any laws or even acting immorally.
As a group, it is plain that there was nothing wrong done to them. Putting them all in one group is unfair to those who really were discriminated against.
I do not understand why you little people complain so much. Just be glad you got a job, not everyone is so lucky.
People ar going to begin to see a pattern that could be perceived as further disenfranchisement by the courts. If cases like these can be turned away while people are being economically harmed then we are no longer talking about ‘law’ are we? And working people have been disenfranchised by the very entity that is supposed to protect ther rights? How long before people no longer pay any attention to the law because it has become the enemy of th ‘law abiding’ citizen??? SCOTUS is turning the US into the playground of wealthy corporations who garner that wealth through questionable methods.
I’m pissed. Believe me, when it can piss me off…it’s bad.