03/29/2011 09:05 pm ET | Updated May 29, 2011

Yes, Wal-Mart Is Too Big to Sue

You have your answer now, in case there was any doubt.

When the U.S. Supreme Court votes in late June to decertify the class of low-income women who are suing Wal-Mart for sex discrimination, here is what the public will conclude from the media headlines:

  1. Wal-Mart has been found not guilty of unfair treatment of its women workers -- when in fact the case was on the issue of "standing" of a class of plaintiffs, not really the merits of the evidence.
  2. The case dragged these low-income women through the courts for ten years, and in the end the Big Corporation beat them.
  3. Wal-Mart can now continue to pay women lower wages with impunity, because the "Janie Q's" -- as Wal-Mart calls its female employees -- are going to get nowhere pursing their cases individually. These women will become legal untouchables once this class action is shattered.
  4. Wal-Mart politically is too big to sue, and all the other corporate giants that filed amicus briefs in support of Wal-Mart are also too big to sue.

After the first day of oral arguments, the media concluded that Wal-Mart had won. NPR, for example, said the Justices had created a "wall of doubt" about the plaintiffs' claims of discrimination, and that the Dukes plaintiffs had been "bombarded" with tough questions by the justices. According to one Forbes op-ed piece, the plaintiffs' lawyer was "roasted."

In a press release last month, the plaintiffs argued that Wal-Mart had "a corporate culture that is rife with gender stereotypes," with "highly subjective policies enforced on a daily basis by its Home Office to ensure consistency in results." This tension between subjectivity and consistency seemed to trouble the Supreme Court. "Well, which is it?" Judge Antonin Scalia asked the plaintiffs. Either individual managers are on their own, "or else a strong corporate culture tells them what to do." The United Food & Commercial Workers have urged Scalia to step down, since his son works for a prominent Wal-Mart law firm that deals with employment issues.

Justice Samuel Alito seemed to suggest that Wal-Mart's employment profile was "absolutely typical of the entire American workforce," so if Wal-Mart was in violation of gender discrimination laws, then so was the entire retail industry. Even if that were true, does that mean that the workers at Wal-Mart have lost their right to litigate for gender equity? If every employer is wrong, does that make discrimination in this case right?

Analysts in the media are suggesting that this large class of women does not have enough legal glue to be bound together as a class. They are suggesting that even though the lower courts found enough "commonality" in these women's situations to certify them as a class, that the Supreme Court will not, and Wal-Mart will be able to walk away from their "associates" claiming that it was local renegade managers who wronged them, not the company. Wal-Mart wants the public to believe that managers 'do their own thing' and that this multi-billion corporation is run like a large unruly family where Father Knows Nothing. We used to call such a portrayal corporate deniability.

Some observers will no doubt want to wait a couple of months to see how the Bush-dominated court rules in this case. But based on what I've seen from the justices already, the writing is on the Wal.

This is perhaps the strongest argument why Wal-Mart needs to have a union. With collective bargaining in place, these 1.5 million 'associates' would have been able to tell their local managers that the sexual pay and promotion discrimination had to end. It's the only way to balance out the enormous power managers clearly have over the workers who were forced to sue them to get their attention.

Al Norman is the author of The Case Against Wal-Mart, and is the founder of Sprawl-Busters.