The supreme court's free pass on sexism for Walmart

The Roberts court decision to block the class action lawsuit for sex discrimination effectively defines Walmart as 'too big to sue'

Laura Flanders
guardian.co.uk, Tuesday 21 June 2011 17.00 BST


Let's get this right: the world's biggest boss, supported by companies as diverse as Altria, Bank of America, Microsoft and General Electric and backed up by the godfather of big business (the US Chamber of Commerce) has persuaded the US supreme court that thousands of women workers can't possibly share enough of an interest to constitute a class?

It's hard to know which part of the court's decision in Dukes v Walmart hurts equity most: the assault on class-action jurisprudence generally, at a time of shrinking tools for workers seeking redress, or the defeat of history's biggest gender-based claim before a court that, for the first time, includes two women, one of whom (Ruth Bader Ginsburg) made her reputation in sex discrimination law.

Dividing 5-4, in Dukes v Walmart, the supreme court on Monday dismissed the plaintiffs' claim that companywide policy gave local managers too much discretion in pay and promotion decisions, leaving Walmart employees at thousands of Walmart and Sam's Club stores vulnerable to gender stereotypes. (The company changed the format of its name since the case was filed.) The plaintiffs "provide no convincing proof of a companywide discriminatory pay and promotion policy," Justice Antonin Scalia wrote for the majority.

In fact, absent a company-wide memo mandating discrimination, the justices could discern no problematic culture at all. Holding managers' meetings in Hooters? Nope. Referring to women workers as "Janie Qs?" Nah-uh. Paying women less than male workers in every job classification in every region? Explaining, as one plaintiff was told, that Walmart pays men more because "they have families to support?"

Apparently, what the plaintiffs needed to produce for this court was an enormous Walmart yard sign reading "CORPORATE PATRIARCHY TO BE PRACTISED HERE".

"The justices seem to think that gender discrimination is a thing of the past," says Elizabeth Lawrence, one of the attorneys for the plaintiffs. Adding insult to injury, the decision in Dukes comes in the same week that an investigation by the New York Times revealed just how close a personal and professional relationship some justices have with business interests.

The Roberts court has already been hostile to just about every consumer class action. Going forward, the impact of Monday's decision goes well beyond the 1.6 million workers in the Walmart case. "It means it's going to be much harder to bring class action suits against big companies," says Lawrence.

Familiar with "too big to fail?" Welcome, now, to "too big to sue".

"This is without doubt the most important class-action case in more than a decade," Robin S Conrad, a lawyer with the US Chamber of Commerce told to the press. The Chamber knows just what a win this is. Alongside the Chamber, over twenty corporations, presumably fearing liability for their own behavior, filed amicus briefs on behalf of Walmart.

"This is not an end to this. Instead of a single class action on behalf of workers at 3,400 stores, they're going to face 3,400 suits," said Lawrence. "It's not good for workers, or consumers, or the companies themselves."

But store-by-store claims will require an awful lot of Davids to take on Goliath. Not only the nation's largest private employer, Walmart also has the largest number of employees who receive Medicaid, food stamps and state public assistance. Few workers working alone have the resources and voice to take on an opponent as formidable as the world's largest retail chain in the courts.

Stripped of the class-action tool at a time when companies are growing ever bigger and more powerful – in the globalised economy, and in politics at home (courtesy of the supreme court's Citizens United decision) – workers are going to have to seek other avenues of collective action for redress of grievances. The United Food and Commercial Workers (UFCW), along with allies across the country, has been working to keep the mega box-store out of urban centres. The UFCW has started a group called Walmart Workers for Change, a workers' centre, and earlier this month, thousands of Walmart workers convened in Bentonville, Arkansas (Walmart's HQ) to announce the Organisation United for Respect at Walmart, which will fight for fair workplace standards.

It's not just about the women workers, one participant, Gloria Taylor a Walmart associate in Miami told me when I caught up with her and her colleague Greshiela Green of Los Angeles at the Netroots Nation conference in Minneapolis this weekend. In this interview, Green says she's worked at Walmart for more than three years and she still qualifies for foodstamps and welfare – as do most of her colleagues, as she found out when she set up a page on Facebook.

It's all workers who suffer low wages and hostile treatment from management at Walmart, says Taylor. But so far, she's alone in her store, raising a complaint. Stripped of a collective way to seek justice, and facing a hostile environment for unions, workers like Taylor are more alone today. Returning to work this week after attending the Bentonville meeting, Taylor is braced for repercussions. "I'm the sacrificial lamb. But I don't mind that."

Workers took a hit, but they're not giving up. "Walmart is not too big for justice," says UFCW president Joe Hansen.

The supreme court's free pass on sexism for Walmart | Laura Flanders | Comment is free | guardian.co.uk

Walmart Case: Supreme Court Aids The Powerful

First Posted: 06/21/11 12:59 PM ET Updated: 06/21/11 05:47 PM ET

Thank the Supreme Court for one thing: In its appalling decision in the Walmart gender discrimination case handed down Monday, the justices supplied future historians with a brilliant symbol of how the United States has essentially become a giant gated community enjoyed by the powerful, with most of the citizenry living outside and struggling to nourish themselves.

Walmart is nothing if not a monument to the benefits of mass organization, an exemplar of all the good things that can be extracted by those who assemble themselves into a single large-scale entity. As the largest retailer on earth, the company is generally able to dictate the terms of trade with the thousands of merchants who keep the shelves of its stores stocked with cut-rate goods, tapping factories in China and middlemen traders in Latin America. Walmart has a habit of placing multiple orders with multiple factories for the same products, then forcing each to accept lower prices at the last minute or walk away with nothing.

By dint of its scale, it is able to capture the lowest prices for just about everything, from shipping to labor to contracting services. At its global procurement office in the southern China boomtown of Shenzhen, Walmart makes representatives from surrounding factories sit together in a bare-bones waiting room before they get a chance to negotiate with the retailer's agents. Should the reps balk at Walmart's price, they know that the buying agent can just step out into the waiting room and find someone else from another factory -- someone desperate enough to deliver for whatever the company is paying. This is the power of being not only huge but organized into one entity.

Strip away the myriad technicalities, and what the Supreme Court essentially decreed this week is that Walmart's employees -- or really any group of people who happen to work for a colossal corporation -- are not entitled to organize themselves similarly to enhance their power to pursue their own interests.

The court ruled that female workers may not be considered a class for the purposes of a lawsuit in which they accuse the company of years of gender discrimination, because they worked in many different stores in many different American communities, making their experiences effectively individual.

"Respondents wish to sue for millions of employment decisions at once," Justice Antonin Scalia wrote in the lead opinion for the court in the five votes to four decision supporting the giant retailer. "Without some glue holding together the alleged reasons for those decisions, it will be impossible to say that examination of all the class members' claims will produce a common answer to the crucial discrimination question."

As if to underscore the absurdity of this disparity, Scalia noted that Walmart has a written policy barring discrimination: The mere act of writing this down at headquarters somehow confers immunity against claims of a breach of that policy -- not that there's any glue providing coherence to the experience of workers as a class!

In other words, the fact that they happen to work for a single enormous employer whose decisions are so consequential that they alone can influence the prices of certain commodities does not amount to a common experience -- not in the minds of the most powerful arbiters in the land.

Rather, each Walmart is its own separate unit, for the purposes of the lawsuit. Walmart gets to be a behemoth when it is setting the prices for the patio furniture and volleyball sets that it purchases from factories in Mexico and China, but when its employees want to band together to address alleged abuses in the court system, suddenly the Walmart corporation might just as well be a collection of little mom-and-pop shops that happen to have the same name.

The court suggested that the Walmart workers could pursue relief to their claims by filing their own individual lawsuits, but that is no option for low-wage employees who typically earn so little that many rely upon food stamps, say labor experts. (Another wonderful American story: Taxpayers subsidizing giant, publicly traded corporations by keeping their low-wage employees alive. But I digress.)

For the workers, this legal "solution" amounts to the equivalent of asking Walmart to negotiate directly with every factory that produces its products on an individual basis, and not impose the price by wielding the power of its scale.

For the labor movement, this is a distressing development. Another crucial weapon in a diminishing arsenal -- the class action lawsuit -- has been effectively blunted, even as corporate employers gain new powers. Last year, the Supreme Court decreed that corporations can essentially funnel as much money into political campaigns as they choose, unlike individuals. The realities of increasingly global trade has added to the options that management can employ as it arbitrages labor costs across every community, putting workers in Detroit in direct competition with their counterparts in Shenzhen.

And for American society writ large, the decision is nothing short of a disaster, a formal affirmation from the Supreme Court that huge corporations enjoy special rights denied to the people who depend on their wages to pay their bills.

Not lost on anyone is the simple fact of widening inequality, with increasing shares of the spoils of American commerce accruing to a narrowing group of people. Chief executives of huge companies are seeing their pay soar, while rank-and-file employees watch another year go by with essentially no raise -- if they are fortunate enough to be employed at all.

We are indeed becoming more like a gated community for the wealthiest Americans, with manicured lawns for those on the inside, and dumpster diving for the working class - -yes, class, a designation that exists by dint of economic reality, no high court affirmation required. The Supreme Court just reinforced the front gate.

Walmart Case: Supreme Court Aids The Powerful