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Published: Thursday, 6/23/2011

COMMENTARY

Woe to these women, because Goliath beat their David

BY MARILOU JOHANEK
BLADE COMMENTARY WRITER

In the David vs. Goliath corporate world, the deck is stacked against David. Helping to assure Goliath that it will stay that way is a ruling this week by the U.S. Supreme Court that rejected a vast class-action suit against Wal-Mart.

From a layman's perspective, the allegations of a pervasive culture of gender discrimination at the world's largest retailer lost on a technicality. The suit's claim of sex discrimination on a systemic basis was too broad and the expected recompense too steep.

The court dismissed the suit for not meeting the legal threshold for such a case, both ideologically and monetarily. The justices unanimously said awarding back pay to as many as 1.5 million current and former Wal-Mart female employees would have been an overreach.

The court's 5-4 vote ruling that the case did not measure up to the class-action standard of plaintiffs sharing common complaint and injury put the female litigants in their place. Lumping all Wal-Mart women into a single class of aggrieved victims was inconceivable to the court's majority.

Surely there were some female workers who defied the depictions of underpaid and overlooked plaintiffs in the sex-discrimination suit. Surely, at an employer the size of Wal-Mart, male employees were not routinely paid and promoted more than their female counterparts in every job classification in every region.

The women who sued Wal-Mart may have had valid gripes, but the court scoffed that they were out of their league attempting to sue "about literally millions of employment decisions at once" and needed "some glue" to hold all those complaints together. Writing for the majority, Justice Antonin Scalia oozed derision toward plaintiffs who had the audacity to act on behalf of all female employees. They "have little in common but their sex and this lawsuit," Justice Scalia wrote, citing the words of a 9th U.S. Circuit Court of Appeals judge.

Apparently in Justice Scalia's orbit, entrenched sexism in the workplace is a thing of the past, or at least not as bad as some disgruntled Wal-Mart associates suggest. Dissenters on the court, including the three female justices, argued to the contrary.

To them, the suit made plain the lopsided role females play at Wal-Mart, making up about two-thirds of the hourly workers at the stores but only one-third of managers. Justice Ruth Bader Ginsburg concluded the plaintiffs provided ample evidence of pay and promotion disparities between male and female employees in nearly every job category, effectively illustrating that "gender bias suffused Wal-Mart's company culture."

But the retail colossus, supported by more than 20 other corporate Goliaths, from Bank of America to General Electric -- with the U.S. Chamber of Commerce in lockstep -- had a fail-safe response of denial and discretionary management policy to sway the court. Sporting a strict company doctrine against discrimination -- typical liability protection -- Wal-Mart consistently denied the gender-bias allegations.

The company's apparent custom of allowing significant hiring, firing, and promoting discretion by local and regional managers appears to have tipped the case in its favor. With so many store-to-store, supervisor-to-supervisor variables affecting so many employment decisions, proving that uniform sexism flourished toward virtually every female employee was next to impossible.

Company operations were too big and individual bosses too different to sue the corporation over any singular complaint. Couldn't be done.

The approach worked with the pro-business court. Never mind that opposing attorneys countered that Wal-Mart has a system of centralized management, and that a statistical analysis found patterns of discrimination across 41 company regions.

Conservative-leaning justices couldn't wrap their robes around gender discrimination on a giant scale, so it must not exist. The women taking on the biggest private employer in the United States failed to show the "commonality" of damage required in class-action lawsuits, Justice Scalia said. Of course, those who have long suffered the shared hardship of discriminatory wages and stolen opportunities might differ.

Now the Wal-Mart workers' best hope of seeking common redress for unfair labor practices through class action -- strength in numbers -- has been weakened. Challenging workplace injustice alone is even more daunting, costly, and futile.

When the odds are so high against David taking on the corporate Goliath and winning, chances are David won't even try. Discrimination will continue, women will continue to be paid less and passed over for promotion, and workers will endure inequities on the job without raising objections.

It's what the ever-powerful titans of business are counting on, with a little help from their friends on the high court.

Marilou Johanek is a Blade commentary writer.

Contact her at: mjohanek@theblade.com.



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