On June 20, 2011, the U.S. Supreme Court ruled on a decade’s long battle of litigation between female employees alleging discrimination based on sex and their employer, megacorporate super-chain Wal-Mart in Dukes v. Wal-Mart Stores, Inc. The ruling is a huge blow to class-action litigators who hoped the case would broaden opportunities for class certification based on bias discrimination claims and to civil rights activists attempting to root out pay inequity based on sex discrimination. While all nine justices agreed that the plaintiffs could not continue under their claim under Title VII, 42 U. S. C. §2000e et seq., the Court divided over the issue of whether the plaintiffs could qualify as a class under any statute. The justices split 5-4 down ideological lines, placing all three female justices and Justice Breyer in the dissent as they limited their findings to the Title VII issue. The majority chose to address the threshold issue of whether the plaintiffs, as women working for and discriminated against by the same employer, had enough in common to qualify under the Federal Rules of Civil Procedure Rule 23(b)(3) as a class in any civil litigation.

Thanks to these five men, it appears the roughly half million women who comprised the class are out of luck, many of whom have faced sexism and misogyny in the forms of lower wages and slower advancement than their male counterparts at Wal-Mart. The class, which was defined as “all women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions policies and practices;” would have comprised the largest class action suit in history.

The case began in 1996 with single mother Stephanie Odle, an assistant manager, who discovered a male-counterpart made more than her. When Odle inquired about the pay discrepancy, she was told the male co-worker made more because he "supports his wife and his two kids." Another woman testified she was told if she "dolled up" and swept "the cobwebs" off clothes and grooming she would have better chance at advancement.

These maddening stories are just the anecdotal tip of the iceberg. Senior Wal-Mart management are known to refer to female associates as “little Janie Qs.” The dissent, authored by Justice Ginsberg, includes evidence that “one manager told an employee that ‘[m]en are here to make a career and women aren’t.’” The evidence considered by the justices included testimony by a committee of female Wal-Mart executives who themselves concluded succinctly: “[s]tereotypes limit the opportunities offered to women.” 

We know this is true across the U.S. A few years ago, Lilly Ledbetter attempted to sue to recover for lost wages and damages after a lifetime of hard work paid consistently less than her male counterparts in Ledbetter v. Goodyear Tire & Rubber Co. Rebuffed by the Supreme Court for not filing her suit earlier (ironic because making her case required Ledbetter be able to prove a specific and intentional pattern of discrimination, which requires time to prove), Ledbetter lived to fight another day thanks to Congress passing the Lilly Ledbetter Fair Pay Act. A 2011 report from the Institute for Women’s Policy Research shows that women still make, on average, 77 cents to every dollar a man makes in virtually every single occupation regardless of education level. It isn’t ludicrous to ask: why punish Wal-Mart for discrimination that lurks everywhere?

There are two reasons rational people should side with the dissent.

The first is factual. The District Court confronted with this case found Wal-Mart’s compensation policies leave a two dollar gap open for variation in pay for every position’s hourly wage. The court also found the company provides no standards or criteria for setting wages within that band, which allows for undue bias to creep into pay decisions with no criteria or guideposts to root it out. Combined with the anecdotal testimony of women who experienced direct bias-- the across the board statistics showing patterns of lower pay for women across the company, and Wal-Mart’s consistent efforts to maintain a unified corporate culture through “frequent meetings to reinforce the  common way of thinking, regular transfers of managers between stores to ensure uniformity throughout the company, [and] monitoring of stores” and it is easy to see a wealth of evidence suggesting there is, in fact, widespread discrimination against women, as a class of employees, at Wal-Mart.

The second reason is simply this. Yes, discrimination against women is widespread. It is, in fact, everywhere. But just because something wrong occurs universally, that does not excuse individual actors from acting in bad faith. In this case, the justices are wrong not to hold Wal-Mart accountable.

My only hope is that time and justice will one day bear Justice Ginsberg out.

Photo 1: Public Domain, Creative Commons

Photo 2: Public Domain, Creative Commons