The Supreme Court heard arguments in the case of Dukes v. Wal-Mart, a historic class-action that alleges the retailer systematically discriminated against female employees in pay, promotion and other employment practices.
By all accounts the plaintiffs in the case have a steep hill to climb. In order for the case to continue on as a federal class-action lawsuit, the legal and factual issues for all plaintiffs must share commonality–a minimum characteristic under the Federal Rules of Civil Procedure. The central premise of the case is that Wal-Mart has a policy of maintaining a common “culture” that ensures uniformity throughout its thousands of stores while also giving local store managers unlimited discretion to decide workers’ pay and promotions. According to the plaintiffs those two strains converge and result in company-wide lower pay and fewer promotions for female employees.
In support of these allegations plaintiffs have relied heavily on the use of “social framework analysis” that shows unconscious or implicit bias in the workplace.
But the Justices appeared skeptical of this evidence, let alone the plaintiffs’ reliance on it to join together the hundreds of thousands of class members. Justice Kennedy, perhaps the bell-weather here, suggested that the plaintiffs were essentially making contradictory allegations and using this research to try and remedy that contradiction. According to Justice Kennedy, plaintiffs appeared to argue both for a common policy and independent discretion. How, Justice Kennedy wondered, could it be both?
Should the plaintiffs succeed before the Court it would be the first time when social framework analysis was able to articulate the “soft” discrimination women and minorities often face in the workplace–personal prejudices that create different opportunities and expectations.
But should Wal-Mart succeed in its challenge then what remains is not a verdict that the retailer failed to protect against unlawful discrimination. Rather, a ruling in the retailer’s favor simply means that each individual plaintiff must proceed with her own case. Such a ruling would no doubt discourage individual plaintiffs as the costs of pursing justice would far outweigh any potential monetary recover.
It is that denial of justice that Wal-Mart is going for. They don’t deny women faced diminished opportunities and wages working for their company. Instead, women should come to expect such situations given the persistent social and cultural bias against female employees.
And that right there is why this case is so significant.
photo courtesy of monochrome via Flickr