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Expanding the Employment Discrimination Defense Manual

Posted: 06/20/11 06:33 PM ET

Wal-Mart is the largest private employer in the country, and its employment decisions affect lots of people - and their families and communities. Ten years ago, in 2001, Betty Dukes, who is an ordained Baptist minister and a "greeter" at a Wal-Mart store in Pittsburg, California, sued Wal-Mart on behalf of every woman who had worked for the company since 1998, or about 1.5 million women. Ms. Dukes began working for Wal-Mart in 1994, and among her claims was that two of the male greeters in the same store were paid more than she was. Her case ultimately made it to the Supreme Court earlier this year.

The only question that the Supreme Court had to decide was whether to give "class certification" to the group of women, that is whether all 1.5 million women could join in the same lawsuit together. Although the two lower courts that heard the case had decided that the case could go forward, Justice Scalia and four other members of the Supreme Court said no (Chief Justice John Roberts, and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito). Under its narrow interpretation of the procedural rules that concern class actions, the court held that there were not enough questions and answers in common to members of the class.

Not surprisingly, Justice Ruth Bader Ginsburg led three other dissenters (Justice Stephen Breyer, Sonia Sotomayor, and Elena Kagan). They would have allowed the plaintiffs to try to go forward under another section of class action procedural rules. As she explained, there was, indeed, a common question: "whether Wal-Mart's pay and promotions policies gave rise to unlawful discrimination." And, she listed some of the evidence in support of a claim...

...that gender bias suffused Wal-Mart's company culture. Among illustrations, senior management often refer to female associates as "little Janie Qs." One manager told an employee that "[m]en are here to make a career and women aren't." A committee of female Wal-Mart executives concluded that "[s]tereotypes limit the opportunities offered to women." [citations omitted]

The court did not decide whether Wal-Mart had discriminated against Betty Dukes, so she might still win her individual case. And some group of workers, perhaps storewide, district-wide, or even regionally, might be able to satisfy the majority's very restrictive test, and be able to go forward as a much smaller class. But that's not the point. As lawyers who have litigated individual sex discrimination cases, we know that they are time-consuming and expensive and difficult and emotionally-wrenching. Class action lawsuits allow one case to be brought on behalf of thousands of (or in this case, more than a million) workers who are employed in different stores and who hold different jobs but have common claims. They are used not just for claims of sex discrimination but also for claims of race discrimination. They have the potential to affect working conditions throughout a company as well as to bring justice to the individuals leading the lawsuit. In fact, after the lawsuit was filed, Wal-Mart "made an impressive effort to treat women more equitably."

The Wal-Mart v. Dukes ruling is important not only for class action claims. Justice Scalia has expanded his employment discrimination defense manual, a manual available to any employer defending against any type of discrimination claim. In a 1998 case, he developed the Civility Code defense, the Equal Opportunity Harasser defense, and the Teasing, Roughhousing and Horseplay defense. Today, he has added a new defense: We Have a Policy! This seems to be a defense that can now be raised in any Title VII case to combat good statistical evidence of discrimination and it could reach far beyond lawsuits against corporate Goliaths.

The five-member-majority opened the opinion with the solemn intonation that: "Wal-Mart's announced policy forbids sex discrimination." 
 
The heart of the contradiction here is the court's finding of no common claims and yet its embrace of a failed nationwide antidiscrimination policy as a shield. In Dukes, the plaintiffs were arguing that managers used their subjective discretion to treat women differently than men. There was good expert evidence showing a "statistically significant disparity between men and women at Wal-Mart... [that] can be explained only by gender discrimination." The court also ignored the structural discrimination claims. For example, as the dissenters pointed out, the company had a nationwide policy of requiring as a condition of promotion to manager that all employees must be willing to relocate. There was good evidence that this operated as a structural barrier to the promotion of women.

The court viewed the plaintiffs' argument about subjective discretion as "a policy against having uniform employment policies." Yet, in a sleight of hand trick that would make Penn & Teller proud, the court again whips out Wal-Mart's antidiscrimination policy: that policy, the court said, is an effective shield against class claims of subjective discretion resulting in statistical pay and promotion disparities. In reality, the way this anti-discrimination policy was to allow managers to discriminate.

The court's opinion makes any discrimination case, large or small, much more difficult to bring.