Supreme Court cuts Wal-Mart too much slack

The Supreme Court ruled Monday that female employees of Wal-Mart could not band together to sue over what they said was pervasive gender discrimination by the iconic retailer. The legal issues in the case were complicated, but the central question was a simple one and the court got it wrong. As a result of the decision, serious allegations against Wal-Mart dating back a decade won’t be tested in court, and similar lawsuits against other employers will never be undertaken at all.

The overall decision was 9 to 0 in favor of Wal-Mart. But on the specific and most substantial issue of whether Wal-Mart’s female employees might seek to join together because of a common experience of discrimination, the vote was 5 to 4.

Class-action suits of the kind Wal-Mart employees wanted to bring provide significant advantages over individual lawsuits. Among other things, they allow an avenue of relief for far-flung employees who might not be able to afford to bring lawsuits on their own.

In seeking to have a court certify 1.5 million present and former female Wal-Mart employees as a class, the plaintiffs amassed impressive evidence of pervasive discrimination. First, there were data showing widespread disparities in pay and promotion; second, there were personal anecdotes of discrimination; and finally there was a study of Wal-Mart’s corporate culture, which was characterized, an expert suggested, by gender stereotyping. (One plaintiff, for instance, said she was told to “doll up” and “blow the cobwebs off her makeup.”)

Justice Antonin Scalia, writing for the majority, belittled this evidence, saying it didn’t prove the “commonality” that is necessary under the law to create a class. Quoting a judge on the appeals court that considered the case, Scalia wrote that the potential members of the class “held a multitude of different jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed.... Some thrived while others did poorly. They have little in common but their sex and this lawsuit.” This takes far too narrow a view of commonality and would protect a companywide policy of gender discrimination or racial discrimination so long as it was manifested in different settings and job categories.

Whether Wal-Mart engages in pervasive sex discrimination is an accusation, not an established fact. But the Supreme Court should have allowed the company’s female employees the opportunity to join together to make their case.