Written by Dianne Post   

On 29 March 2011, the two attorneys arguing the case could hardly get a word out before they were interrupted by one or another Supreme Court justice, who in their eagerness interrupted each other. The question before the court was not the merits of whether Wal-Mart had discriminated against women, but whether the case should proceed as a mandatory class action and if so, how.

Wal-Mart’s attorney argued on two procedural grounds: the class action cohesion requirements had not been met as required by commonality, typicality and adequacy of the claims of the class, and that the individualized claims for monetary relief did not satisfy the requirements for certification of a mandatory non-opt-out class.

The women’s attorney focused on the fact that though the company had a policy of non-discrimination, the fact that they gave unguided discretion to managers resulted in discrimination against women based on stereotypes, and that established the pattern or practice needed to prevail.

The comments made by attorneys and justices alike on all sides spotlighted the gap between the real lives of women and the environment of the law. The Wal-Mart attorney insisted that the 544 women managers could not be both victims of discrimination and perpetrators of gender-based stereotypical decision making. Of course they can. In fact, it is quite common in history that victims become perpetrators at the same time over their own people, often to retain their own positions or privileges.

The attorney for the women argued that though Wal-Mart had a policy against sex discrimination, it existed in name only because the managers were given unguided discretion and used stereotypes in making decisions that resulted in women being underpaid and not promoted. For Scalia and Kennedy, simply having a policy was enough, but as the attorney pointed out, if that immunized business, then everyone would just pass a policy and continue to discriminate. In fact that is the reality for many victims of discrimination, words over deeds. Roberts wanted to blame the discrimination on a few errant managers rather than any systemic abuse.

Justice Alito claimed that since women were discriminated against in the society, Wal-Mart was doing nothing but reflecting the prevailing mores. While the attorney had a good legal answer that a company must be compared with women with men within the company not with the society as a whole, the question, and the attorney’s subsequent comment that he had no reason to believe that every company discriminates against women exposes the falsehood that non-discrimination laws are enough to achieve equality. If the prevailing patriarchal structure that normalizes inequality is not addressed, non-discrimination laws are window dressing. The same holds true for race. The argument that non-discrimination laws alone are sufficient does not take into account that the groups are not starting at the same place, and without affirmative action, they will never catch up.

Another main issue was the remedy. An injunction could be applied across the board, but how would back pay be assessed and how would damages be apportioned? The district court judge had indicated that individualized hearings would be impossible because of the size of the class. The women’s attorney put forth a statistical model that would be created based on records, but here he got into deep water by arguing that the model would be based on Wal-Mart records so it would be fair, and that Wal-Mart kept inadequate records. The Wal-Mart attorney did not miss the opportunity to point out that both could not be true, and they would be denied the ability to show that individual women, such as the three named plaintiffs, did not deserve back pay or even any pay because they were such bad employees, they could have been fired and one was.

During the presentation of the Wal-Mart attorney, Sotomayor asked eight questions, Roberts seven, Kagan six, Ginsburg three, Kennedy two and Alito one for a total of twenty-seven.

When the attorney for the women rose to speak, Roberts hit him with the first question that since Wal-Mart’s pay disparity was less than the national average, what could be wrong with that? Discrimination could be wrong with that, but apparently discrimination so long as on a big scale might be untouchable. I’m reminded of an argument a lobbyist made when we were trying to pass a hate crimes bill in Arizona some years ago. He said that there were so many gender- based crimes that if it was included the others would suffer from lack of attention. That is actually what happened with Title VII. Since “sex” as added at the last minute as a joke, everyone expected the main cases would be race discrimination, but shortly after the Commission started, they were overwhelmed with sex discrimination claims.

Kennedy said it was not clear to him what the unlawful policy was. When the attorney answered that it was unchecked discretion, the justice shot back that he was going in two different directions i.e. that Wal-Mart knew what was happening and that supervisors had unchecked discretion, and these are inconsistent positions. They are not. Wal-Mart could well know what was happening and deliberately let it happen through unchecked discretion, which could then not be traced back to a systemic policy – a point Kagan made later.

Scalia claimed to be whipsawed between subjective managers and a corporate culture that tacitly encouraged discrimination. This description of corporate culture would surprise no woman, but of course Scalia would have had no such experience.
Scalia also failed to understand how a training that told managers that women are underrepresented because men are more aggressive is intentional discrimination. He characterized it as an assessment rather than a statement to not promote women. Unfortunately, the attorney agreed. They are both wrong. It’s not an assessment, it’s a stereotype and it’s incorrect. Basing employment decisions on stereotypes is precisely what equal protection law is to prevent.

Roberts asked the lawyer specifically about the immediate case - if a company has a policy of equal treatment and has a subjective delegation system, and women are harmed by that system, can they sue in spite of the policy. That is precisely what pattern and practice is – systemic actions that are in contravention of a policy, if any.

Bryer stepped in to rescue the attorney by saying that if management knew the discretion was resulting in violations of the policy, shouldn’t they have withdrawn the discretion? That of course is the commonality that ever woman in the class shares – the use of discretion without guidelines results in discriminatory and stereotypical standards being used for hiring and promotion to the detriment of women.

Scalia countered that the class includes women who are underpaid and some who are not, so there is no commonality. First, this is not an equal pay case; it’s a discrimination case. Secondly, discrimination itself is a harm just as segregation is a harm even if conditions are the same. Discrimination is a statement about inequality, about the subordinate status of women, and has a negative impact on women’s self esteem and future prospects.

During the presentation of the women’s lawyer, the justices asked forty-four questions, thirteen by Scalia, eight by Kennedy, seven by Ginsburg, six by Roberts, four by Alito, three by Sotomayor, 2 by Bryer and one by Kagan. Thomas continued his pattern of silence.

The Wal-Mart attorney had reserved some of his time, and when he came back to the podium, Sotomayer pointed out that since Wal-Mart had a database, the problem was only the size of the claim not the possibility of figuring out the damages. Bryer was clear that there was a common issue that was at least sufficient to support an injunction.

The lawyer claimed that the common policy affects everyone differently so there was no typicality. Again, he’s wrong. Discrimination affects everyone the same – it thwarts their dreams, it frustrates their progress, it sends a negative message about them and their abilities. The individual results may be different – hired or not, promoted or not, trained or not. But the system of discrimination does what it set out to do – maintain a hierarchy and enforce control of the subordinate.

The Wal-Mart attorney concluded by saying that Wal-Mart does pay women the same. Justice Sotomayor responded, “Well, that’s the whole issue that’s in dispute.” It is and it’s isn’t. The issue is more than just pay. The court’s failure to understand that discrimination itself is a harm, and that it should not be excused because it’s common, is a failure of the democratic principle on which our society is allegedly based. * * *