Today was another bad day for the women who work, have worked, or will work at Wal-Mart. In addition to having faced a clear pattern of gender discrimination throughout the company's thousands of stores, they now have to contend with a Supreme Court decision that will make it impossible for them to band together in court to fight for justice. The decision in Wal-Mart v. Dukes is just the latest example of the five-vote conservative majority's unrelenting effort to prevent everyday Americans from using the courts to battle corporate misconduct.
Although the court unanimously decided that the particular way the class of plaintiffs was formed was improper, the justices divided 5-4 over the fundamental issue of whether the class could be formed at all. Over the forceful objection of four justices, led by Justice Ruth Bader Ginsburg, the court's conservative majority has once again made it much more difficult for large businesses to be held accountable for their actions, this time by significantly raising the bar for forming a class, which is the only effective way to fight against widespread injustices committed by large, deep-pocketed corporate interests.
"The plaintiffs' evidence, including class members' tales of their own experiences, suggests that gender bias suffused Wal-Mart's company culture," wrote Justice Ginsburg in dissent. "Women fill 70 percent of the hourly jobs in the retailer's stores, but make up only '33 percent of management employees.' [W]omen working in the company's stores 'are paid less than men in every region' and 'the salary gap widens over time even for men and women hired into the same jobs at the same time," she added. Justice Antonin Scalia and his pro-business brethren managed to ignore this voluminous anecdotal and statistical evidence in finding for Wal-Mart.
By increasing the threshold to bring any type of employment discrimination class action, and ruling that certain evidence cannot be used, the Corporate Court has once again made up new ways to prevent unified action by victims of widespread discrimination. The court also erected a new shield for corporate misbehavior, in this case by giving undue weight to the fig leaf of written anti-discrimination policies and ignoring real-world behavior. Apparently, for Justice Scalia it's enough for a business to give an employee a piece of paper saying they don't cheat women out of pay and promotions, no matter what they actually do on a day-to-day basis. His opinion seems to say that corporations, especially big ones, can self-administer this legal inoculation and avoid the whole messy business of defending themselves in court.
Sadly, Wal-Mart v. Dukes is yet another in a long series of cases where the conservative majority has used a radical reformulation of the law to erect a wall of privilege and protection around big business and has undermined long-held legal traditions of balance and fairness. The conservatives' purpose is clear: force everyday Americans into an arena where they have to go one-on-one against powerful corporate opponents, while ensuring that big business doesn't have to take on unified opponents.
In spite of the willingness of the conservative majority to ignore clear and overwhelming evidence to the contrary, the plain fact is that gender discrimination still exists in our country, and at Wal-Mart. After today, thanks to the way this court has redefined the standards of common interests among employees, it will be much harder for those who face broad-based bias to combine their resources, prove that patterns of misbehavior exist, and force systemic change.
Nevertheless, no one is giving up. The fight for remedies will go on in the courts and in Congress, not only for Betty Dukes and the other women of Wal-Mart, but for those who believe the law is meant for all Americans and should not be distorted into legal armor for the powerful.
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