For over ten years Wal-Mart has fought back against women who claim the retailer discriminated against them not by defending their actions or their policies, but by challenging the rights of the women to bring their claims in court. And it’s a strategy that paid off.
The Supreme Court’s decision in Wal-Mart v. Dukes focuses on a seemingly narrow procedural issue, that is, whether or not the sex discrimination claims of over one million former female employees are “common” enough in injury and allegations to join them together in one large class action. But the conservative majority, authored by Justice Scalia, tips its hand to the larger substantive and cultural issues surrounding a growing and evolving hostility by the Justices towards the rights of individuals in general and the rights of working women in particular.
To begin with, the district court’s decision to certify the class was entitled to deference on appellate review. Not surprisingly, the Roberts Court gave it none, a point raised by Justice Ginsburg in her dissent. Also, the decision creates new, burdensome hurdles under Rule 23(a), hurdles not found in the language of the rule but, like its decision in Citizens United, the conservative majority reached until it was able to justify its new legal standard.
The conservative majority also attacks the statistical and anecdotal evidence used by plaintiffs to bolster their claims, holding that it was not sufficiently persuasive to amount to anything other than mere coincidences and accidents of potentially unlawful treatment.
However, the vast majority of the plaintiffs actually did allege common claims and show evidence of common injury–a task not easy to do in a a pay discrimination case where most direct evidence of discrimination will be lacking due to pay secrecy policies that allow employers to keep that very evidence confidential. Ultimately, whether that evidence was persuasive as to discrimination was not the issue before the Court. Instead, the issue was whether that evidence could tie these plaintiffs claims together. And it could have.
The fact that the majority conflates these issues to get to its holding illustrates the deep bias infecting the Roberts Court. It’s a bias that wants the federal courts to be the protector of the powerful rather than the vindicator of the oppressed and it has acted on this bias specifically by erecting these kinds of unnecessarily burdensome procedural requirements for individuals to bring claims.
But there is something that we citizens can do. To start with, you can join the Nation Women’s Law Center in rallying in solidarity with the Women of Wal-Mart.
You can also urge Congress to pass the Paycheck Fairness Act and end pay discrimination once and for all. Congress did this with Ledbetter and can do it with Dukes. And given the temperament of the Roberts Court, that may be our only real solution.