Scrutinizing Wal-Mart

Wal-Mart may or may not have a policy of discriminating against women in pay and promotion, but establishing the truth will require a trial. The Supreme Court this week wrestled with whether it should clear the way for a class-action lawsuit brought by a handful of women on behalf of as many as 1.5 million others. The case for doing so is strong.

The plaintiffs insist that Wal-Mart is "rife with gender stereotypes demeaning to female employees" and link that assertion to lower pay and the fact that "while women comprise over 80% of hourly supervisors, they hold only one-third of store management jobs." They note that a lower federal court found that their statistical analysis of the retailer's decisions raised "an inference of company-wide discrimination."

Class-action suits are controversial, but they provide justice for workers who can't afford to proceed with anti-discrimination suits individually and provide an efficient way for the judicial system to deal with far-flung claims. But whether such suits can go forward depends on a court's determination that there are questions of fact and law common to members of the proposed class. Wal-Mart scoffs at the notion that all of its female employees could constitute a class, given differences in location, job description and experience. But a pervasive policy of gender discrimination is an adequate common denominator, and the size of the class shouldn't matter.

In arguing that Wal-Mart had a policy of treating male employees better than female ones, the plaintiffs make essentially two arguments: that Wal-Mart radiated a corporate culture of gender bias and that the retailer's headquarters gave too much discretion to local managers. At Tuesday's oral argument, conservative justices suggested this was a contradiction. "Number one, you said that this is a culture where Arkansas knows, the headquarters knows, everything that's going on," said Justice Anthony Kennedy, "then in the next breath you say, well, now these supervisors have too much discretion." But the contradiction is more apparent than real: It is possible both that Wal-Mart encouraged a culture of discrimination and that it neglected to monitor practices at its regional outlets.

If the Supreme Court rules that the plaintiffs constitute a legitimate class, they will still have to substantiate their allegations at trial (or negotiate a settlement with Wal-Mart). The only question for the court at this point is whether Wal-Mart's female employees can avail themselves of a form of lawsuit capacious enough to cover all of those who might have been the subjects of discrimination. The fair answer is yes.

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