Walmart vs Women

Monday morning the Supreme Court decided that a sex-discrimination lawsuit against Wal-Mart cannot proceed as a class-action suit. Here is the decision in pdf. When I refer to page numbers, I’ll be talking about the pdf page for simplicity’s sake. Buckle in, folks, this is going to be a long ride.

I should start with the usual disclaimer pointing out that I am not a lawyer, nor am I trained in the minutiae of legal language. While following the Prop 8 trial I read a lot of legal briefs and had lawyers helping me to understand them which gives me at least a general feel for how these documents work, but I am not by any stretch an expert nor do I pretend to understand the nuances of legal theory. (It’s also worth mentioning that many papers concerned with Prop 8, especially Amicus Curiae briefs supporting the Defendant-Intervenors, were completely insane. Seriously.) As such I’ll mostly keep my discussion onto parts I more or less understand, more philosophy than legality. On those terms, at least, I feel that I can show that Scalia needs a new title. I propose from now on he be known as “Little Janie Q Scalia”.

So, the Supremes say this case shouldn’t be a class-action suit. I’m a little puzzled as to what kind of suit it should be. The terms of the class-action include every woman who’s worked for them since December 1998, that’s 1.5 million people! I’d really love to see 1.5 million individual lawsuits pour in, but it seems a little unfeasible given the current economic situation. What I don’t understand is that this sounds very much like exactly the sort of thing class-action suits exist for: A specific class of people have a grievance against a powerful corporation and sue as one collective entity against another.

As far as I can tell this decision rejects class-action status based on some pretty dense rule issues, perhaps a procedural error, and the claim that because the backpay owed would be different for everyone, they cannot take a single uniform action to provide relief. I can understand a desire to keep class-action suits as simple as possible, but I get a little angry at what feels like the court saying, effectively, “You can’t have justice because it would be too much bother”.

(I just got a robodial phone message trying to build up a crowd to support expanding a local Wal-Mart. I’m tempted to go with a big sign saying “Kick the sexist fuckwits out of town” or some such. The timing is kinda funny.)

Anyways, in the decision we have, on page 19 of the pdf after some bald assertions of how managers would act, this useful sentence: “In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction.” Followed on page 20 (of the pdf) with discussion of two statistical analyses which seem to suggest just that. First a statistician’s analysis of the company’s promotions that shows a significant disparity that can “be explained only by gender discrimination”. Second a labor economist compared work force data between Wal-Mart and competing stores and concluded that Wal-Mart was at least more sexist than the others.

Little Janie Q Scalia dismisses the statistical data by speculating that a few stores could simply be so very sexist as to drag the average along until the entire company appears to have a pervasive sexism throughout it. Seriously.

At the top of page 21 Little Janie Q makes the startling claim that “Even if it established (as it does not) a pay or promotion pattern that differs from the nationwide figures or the regional figures in all of Wal-Mart’s 3,400 stores, that would still not demonstrate that commonality of issue exists.” I want you to contemplate that one for a bit. At this point I’m seriously wondering what “commonality of issue” means that is so different from what it sounds like it means. Since I know the words “issue” and “of” very well I looked up “commonality”.


1. The state of sharing features or attributes.

2. A shared feature or attribute.

Well that seems clear enough, “commonality of issue” means they all have the same issue, just like it sounds like it’d mean. So how can Little Janie Q Scalia claim that having reduced pay or promotion prospects in every store this company runs compared not to some vague ideal, but the rest of the real world, would not demonstrate that all these women have the same issue? What’s his reasoning there, how does he explain that? Frankly, he doesn’t. He tells us what excuses the managers would give, pretty standard sexist apologist crap, and then cites legal precedent about “identifying the specific employment practice that is challenged.”

The specific practice, of course, is not paying or promoting women as much as men, or failing that at least being no more sexist than the rest of the nation. Little Janie Q says, if you dig through the bullshit enough, that even if this practice were universal within the company, it wouldn’t be enough to show that it was a common issue for the women who worked there, and they haven’t pointed out what it is.

But wait, there’s more! Let’s move on to page 22. (I swear I’m not going through the whole thing page by page.)

Here we address the “anecdotes”. I’m a little curious about that choice of word, usually when I see “anecdote” it’s somebody pointing out that an anecdote is not data, nor is it evidence. But legal proceedings often rely on testimony with the threat of perjury adding some weight to what people say. So were these stories not submitted under oath?

Here we have a numbers game. Check this out, Little Janie Q cites a 1977 discrimination case that had 40 stories out of 334 people, about one eighth of the plaintiffs presented such an anecdote to the court. Here we have 120 affidavits (Aren’t those under oath?), which he feels is too small a percentage to be significant. I’d like to remind you that there are 1.5 million people listed in this suit. Is he suggesting that they need 187,500 stories of discrimination before they can be taken seriously? He also brings up the locations and how they’re clumped together, which is a more legitimate concern. Little Janie Q Scalia does not mention the contents of those anecdotal affidavits at all.

By now you’re probably ready to hurt me for not explaining the phrase “Little Janie Q”, so I’ll get to that before someone stuffs me into a woodchipper. If you check page 36 (pdf still!) of the decision you’ll find that “little Janie Qs” is, according to some of those anecdotes, the nickname Wal-Mart senior management calls the women who work with and for them.

Wal-Mart’s official policy does not discriminate. I have no doubt that this is the case on paper. It is not difficult to imagine a big difference between official policy on paper and actual policy carried out day by day. Most everyone reading this will have had experiences where the written rules and the real rules were different. It can be very difficult to prove, though, and it festers.

Sensible people start spending time in meetings hearing constant stereotypes and after a while peer pressure & confirmation bias have them believing it. Next thing you know you have a corporate culture that doesn’t find anything at all demeaning about giving women a cutesy nickname and saying shit like “men are here to make a career and women aren’t”. They probably don’t even do it deliberately, or at least, not out of a sense of “Hey, let’s make things harder on the women”. Most likely they’re just blind to their own privileges & prejudices and think they’re being fair, not even noticing that women start a few rungs lower in their evaluations or thinking that it’s fair that they do because women are more interested in raising babies than moving up the corporate ladder.

And here’s the Supreme Court not simply denying the class-action, but going out of its way to make excuses for this shit, to belittle the evidence and muddy the waters. To say that if it’s happening, it’s not because of Wal-Mart’s policies but in spite of them, as if that makes it not Wal-Mart’s problem somehow!

At least it’s not unanimous, starting at page 32 of the pdf, there’s a partially dissenting opinion by Justice Ginsburg, joined by Justices Breyer, Sotomayor, and Kagan. The non-dissenting parts are pretty dull, it seems to boil down to “They went about certifying their class in the wrong way”. It’s when you get to the dissenting part that things get interesting, my little snippets of corporate life in Wal-Mart come from there.

I suppose the lesson here, the legal precedent that Little Janie Q Scalia is setting, is that getting away with discrimination is as simple as not having it written down anywhere, giving wide discretionary power to managers, and keeping plenty of stereotypical locker room chat in your meetings. Giving the victims of your prejudice a stupid pet name helps dehumanize them, of course.

Ultimately, while I’m sure this decision is within the letter of the law, I am also quite sure that it’s outside of the spirit of the law. In a free nation the law must have the flexibility to address difficult claims like this with a clear sense of the spirit of the law so that the letter does not become a straitjacket. In a free society the rights of people, whether a class or group or a single individual, must always outweigh those of institutions.

About Leo Tarvi

Mostly fictional.

Posted on June 21, 2011, in Nonfiction, Personal and tagged , , , , , , , , , , , , , , , . Bookmark the permalink. 1 Comment.

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