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.
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