The Supreme Court has told one and a half million women who work at Wal-mart, in essence, be grateful you have jobs even if you make less money and get promoted less than men. Now shut up and go home.
That was the practical upshot of the ruling in the highly-watched case Dukes v. Wal-mart.
I used a similar phrase a short time ago when SCOTUS declined to hear the appeal of the Texas cheerleader who was dismissed from her high school squad for refusing to cheer for the student who had allegedly raped her. The denial of SCOTUS upheld the message sent by the lower courts -- as a cheerleader, you're a hand-picked mouthpiece for the school's message, so you have to say what they tell you to say (even about your attacker) or get out.
Now, in the most activist judicial move I've seen in a long time, the Supreme Court dismissed the class action suit Dukes v. Wal-mart sending that same message to the women of Wal-mart by ruling that a class of 1.5 million plaintiffs was just too big for evidence of gender discrimination to be "common" to all of them -- one of the basic requirements in a class action lawsuit. Few legal watchers, including this one, were surprised at that outcome. But digging deeper into the 5-4 opinion penned by Antonin "the Constitution doesn't protect women against discrimination" Scalia, you'll find that Scalia turned a procedural case into the latest substantive attack on women.
Scalia exercised his judicial activism, which he claims to hate when it comes to his right-wing sensibilities, and actually changed the standard for what potential class action plaintiffs have to show before they can make it to trial. Before yesterday, plaintiffs needed to allege certain common facts or issues among members of the class to get past the potential dismissal stage. Now, thanks to Justice Scalia, the ante has been upped and plaintiffs must actually prove a common harm, not just allege facts that would support it, before they can move past the pleading stage. Scalia's opinion addressed the procedural questions it had to and then swiftly and deftly in just a few pages, made it clear, yet again, that blind justice isn't blind at all and, apparently, is on the side of big corporate political donors and the United States Chamber of Commerce.
Of course, not wanting to disappoint, Scalia took it even further in an amazingly laughable paragraph, claiming that there were no facts under which the women of Wal-mart could have been discriminated against in the first place because Wal-mart had a written policy banning gender discrimination:
"... [managers] left to their own devices in any corporation -- and surely most managers in a corporation that forbids sex discrimination -- would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all."
In the dissent, the three women justices -- Ruth Bader Ginsberg, Sonia Sotomayor and Elena Kagan -- were joined by Justice Stephen Breyer in pointing out all the legal flaws and holes in Scalia's opinion. I had held out some hope that the female bloc of justices would prevail on their male colleagues, as Ginsberg did in the strip search case of a middle school girl a few years ago, that a male-oriented lens doesn't always provide the most accurate view of the facts before them. Or that an "official" corporate policy against gender discrimination doesn't mean that discriminatory practices aren't being allowed -- or encouraged -- to happen. Ginsberg recounted in her dissenting opinion, as she has in the past, that one of the best examples of how gender issues play out even when there is an anti-discrimination policy involved a case about symphony orchestra hiring practices. Orchestras didn't think they were discriminating against women musicians until they were required to hold all auditions with candidates behind a screen. And guess what -- more women were hired because they could only be judged by their performance and not any other factors, like gender.
Long-held, and faulty, societal views that men are more reliable, that women will quit a job when they have babies, that once women have children they're not as committed as men, and that men are the chief support of families so they should get paid more, enable men who still run the show in corporate America to keep practices in place that allow them to be surrounded by others like them. And those things, my friends, are often impossible to prove. Look how long it took Lilly Ledbetter to show she had been discriminated against. But that's what the Supreme Court majority, Wal-mart and the corporate world want -- to deal with these issues on a case by case basis because they know that few employees can afford to hire an attorney on their own meager salaries to fight an employer or a corporate giant for what's right.
Those in the politically conservative world will pound the drum claiming this was merely a procedural case and direct attention to the portion of the Wal-mart decision that was unanimous, which only addressed whether the plaintiffs had plead their case correctly on damages. The 5-4 decision that is at the heart of this national employment crisis is the over-stepping of the right wing of the court to stretch a procedural case to change substantive law in a way that adversely impacts today's majority of breadwinners -- women.
I've never been a believer in reincarnation, but today I've got my fingers crossed that, if it exists, Scalia and the others in the Wal-mart majority come back in their next lives as Wal-mart women. Now that would be justice.
Joanne Bamberger is the author of the new book, Mothers of Intention: How Women and Social Media are Revolutionizing Politics in America. Bamberger is a political and social media analyst and strategist who writes the political blog, PunditMom, and is about to launch the new site dedicated to women's commentary, The Broad Side.
Follow Joanne Bamberger on Twitter: www.twitter.com/PunditMom
Naomi Cahn and Nancy Levit: Expanding the Employment Discrimination Defense Manual
The irony of this lawsuit is that the plaintiffs were using an outdated, sexist stereotype to try and prove that they are victims of outdated, sexist stereotypes. Namely they are arguing that they have more responsibility for raising their children then men do.
The real solution to these sorts of problems is to start recognizing men as working fathers and not just workers. Until employers and society start expecting men to be more involved as fathers and until we start expecting dads to step back in their careers so that moms can climb the ladder at work, women will continue to come up against the glass ceiling in disproportionate numbers.
But don’t take my word for it. It was Gloria Steinem who said “Women will not be respected outside of the home until men are respected in it.”
Women would love you "undervalued menz" to pick up 50% of unpaid domestic work but you refuse to do that. Many countries have a parental leave policy that is gender neutral but men still refuse to take time off because they see unpaid domestic work as "women's work" below their dignity. So what do you suggest?
As for what do I suggest? For starters:
-raising/changing our expectations of men as fathers in the workplace
-offer a period of "use it or lose it" paid parental leave uniquely for fathers
(like Sweden or Quebec)
-start treating fathers like parenting equals and not "helpers"
Until we normalize the "involved father"--until we help men broaden their definition of 'provider' so they don't measure their worth as a father by the girth of their wallets--until men don't feel like they are jeopardizing career and family by saying, "yeah, I'll work 3 days a week so my wife can climb the corporate ladder" women, men, families and employers will all continue to lose out.
What goes unremarked upon, on both sides of the Walmart case, is that about 72 percent of Walmart's hourly sales jobs have all along been held by women — which is discrimination FOR women, or, worded differently, discrimination against men.
Suppose 72 percent of the company's hourly sales employees were men and most of the managers were women. Since women's advocates now ignore Walmart's current, real hiring discrimination against men, doesn't this mean the advocates would ignore women's dominance in Walmart's management and claim that a 72-percent male sales staff proves hiring discrimination against women? Wouldn't this hiring discrimination in fact now be the basis for the class-action lawsuit against Walmart?
For a primary reason Walmart has more male managers than female, see:
"Taking Apart the Sex-Bias Class-Action Lawsuit Against Wal-Mart" at http://tinyurl.com/lnn3xn or at http://malemattersusa.wordpress.com/2011/06/21/taking-apart-the-walmart-sex-bias-class-action-lawsuit/
"female workers in 2001 were paid up to 37 cents less per hour than their male counterparts. Female managers earned about $14,500 less annually. And while women were 92 percent of Wal-Mart's cashiers, they were only 14 percent of its store managers."
http://articles.philly.com/2011-06-22/news/29690119_1_wal-mart-corporations-female-managers
How about you get a 100% male cashier staff and we get a 100% female managerial staff?
Did you know that "masculinist" means "an advocate of male superiority or dominance" (Merriam Webster Dictionary online)?
Sorry. Couldn't disagree more. How could you possibly wish for anything higher than a dung beetle?
This distinction is beyond the comprehension of "progressives", who co-opt the law to impose THEIR "morality", whatever it is in the moment, on the rest of we the great unwashed; and in so doing, turn the State into their godhead.
Instead, my husband and I have to discuss it and figure out who should stay home or go home. That decision may be based on who has the most flexibility that day, which of us can or can't easily leave work that day, or simply who did it last time and whose turn it is this time. We can't simply assume "Mom" will do it, because in our house there is no "women's work." We do it all and work together to divide the labor equitably, without assumptions about who will do what.
If women are "frequently out on family leave" maybe that suggests the need for more equitable division of labor in the home. Alternately, maybe it suggests that gender assumptions in the work place need to change. After all, the flip side of that coin is that can be more difficult for father's to take family leave when necessary, because it's "Mom's" job or "Women's work" instead of just plain parental responsibility.
This was not an exploding tire, or lead paint, which class action lawsuits were intended to help (and rightfully so). This was about thousands of individual situtations, which may or may not be related via company policy and practices. It would not have been possible for Walmart to address each of these situations, period. Furthermore, it would have opened up a flood of lawsuits, driving up costs for everyone.
Remember that these women and others can still sue if they truly have a legit complaint, no one is barring them from doing so.
Wal-mart has money so the MUST be evil.
Ms. Bamberger:
What about conductors who are Women? Gay? Transsexual? Black? Hispanic? Handicapped? Mormon? Muslim? What kind of orchestras do THEY end up hiring??
Finally, YOU're in charge of Walmart, what are YOUR HR practices, that keep the company from being picked apart by the shakedown artists??
But I had mulled it over as a teenager: "Classical music is much more disciplined and richer than rock; I'll listen to it when I'm older."
The point is, Classical music WAS rock, when it first came out, with time came competition, more every day!! To keep up, classical music's gotta SPREAD, from it's Western Civilization origins, with its intricacies that's a tall order in ANY country, let alone the third world. The shock today is not that "Hell meets Evil", from rappers Eminem and Royce da 5'9" with explicit lyrics in EVERY "SONG" is the top selling album; but rather that Jackie Evancho's "Dream with Me" crossover classical songs and arrangements from a child prodigy mounts a successful challenge, with the "shrinking white demographic" a dramatic reality.
I suspect that classical music, or cross-over music such as that from Ms. Evancho, Josh Grobin and the like, will stay rooted to its classical traditions, making room for only those willing to indulge in the years of training and sacrifice to become musicians, which may have part of its fabric a preference in numbers, pay scale, respect, whatever for male vs female musicians.
Call it art or theater, instead of gender discrimination, today a matter of degree, rather than outright exclusion or gross disparity.
When you look at the details of what was being argued in the case it makes this article only seem more deceitful. It seems to be part of a pattern of misinformation that is done to discredit the Supreme Court and our legal system in general. How else can you demonize this opinion? Women can still sue if they face discrimination. Class action suites can still be made when there is an identifiable group that has been discriminated against as a whole. What logic is there to the accusation that Wal-Mart discriminates against women? This seems to be more a defense of attorneys who are the real winners of class action lawsuits.