Supreme Court decision in Wal-Mart case brings out discussions about sex discrimination, re-emergence of ERA

In a 5-4 vote that fell along ideological lines, the U.S. Supreme Court decided this week that 1.5 million women who are current and former employees of Wal-Mart could not join together in a class-action lawsuit (one of the largest ever) against the company because of a lack of “sufficient proof” of commonality and evidence of discrimination among all of the plaintiffs. The case, Dukes v. Wal-Mart Stores, Inc., has been ongoing since 2001 and the women charge that they’ve been subjected to unequal pay and promotion based on company practices and culture. The highest court’s decision overturned the lower courts’ rulings.

The case and the Supreme Court’s decision have received much attention and debate this week including about whether it demonstrates a “pro-business” leaning of the court, whether it’s a sign that some corporations are “too big to be held accountable,” whether it is just a check on class action lawsuits. Most interesting for our purposes is the coverage of what this decision means for women.

The question came down to just how much in common the 1.5 million women needed to have to sue as a class.

Plaintiffs pointed to statistics, such as the fact that women were 70 percent of employees but only one-third of managers, and anecdotal examples of discrimination as a result of local managers’ control over individual salaries and promotions. Meanwhile, Wal-Mart pointed to its written equal opportunity policy.

Writing for the majority, Justice Antonin Scalia sided with Wal-Mart that there was not evidence that the company operated under a “general policy of discrimination” that affected all of those more than one million plaintiffs. He said it was in fact that substantial control allotted to individual stores and managers that made it not plausible for all the women of Wal-Mart — in various positions, pay levels, store locations, states, etc. — to have been subject to the same discriminatory policy employment practices.

In her dissent, Justice Ruth Bader Ginsburg noted that giving managers discretion in personnel decisions without formalized standards can result in bias: “The risk of discrimination is heightened when those managers are predominately of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes.”

Some commentators pointed out that “contemporary sexism” is no longer out in the open, but more subtle and cultural. As, Courtney E. Martin pointed out in an opinion piece for the Christian Science Monitor, “It’s not company rules that most brave working women have to challenge these days; it’s informal and widespread exclusion.”

Others, like Nelson Lichtenstein in an op-ed for the New York Times, argued that Wal-Mart’s patriarchal beginnings have put on a new face of a “systematically authoritarian structure” that hurts both women and men. Since women make up roughly 70 percent of the hourly workers, it has a tendency to hurt them more, he noted, particularly with regard to promotions into management that require relocation and long hours. He argues that this case demonstrates the need for a union.

Some of those who applauded the Supreme Court’s decision, including Ann Rittgers in this opinion piece, pointed out that in protecting due process rights by not allowing the class-action rules to be “loosened,” the decision in turn protected everyone, including women.

The decision does not necessarily mean the women won’t be able to continue to pursue action against Wal-Mart; they’ll just have to do it in more specific cases and in smaller numbers and through complaints with the Equal Employment Opportunity Commission, as the plaintiffs have already said they plan to do. Such cases have been successful in the past. One woman managed to win $2 million from Wal-Mart in a lawsuit after she claimed was fired for asking to be paid the same as her male colleagues.

If nothing else, the high-profile case has brought attention to the issue, and, by some accounts, positive changes within Wal-Mart, including increases in the percentages of women in management, even according to some of the named plaintiffs in the case.

Wal-Mart is not necessarily alone either in claims of unequal treatment, as CNN Money points out, since similar suits of “unconscious discrimination” have been brought against other big corporations. The facts across the board regarding women’s status in the workforce show disparities, as the Christian Science Monitor highlighted, including the pay gap of 81 cents to a man’s dollar. (See our past week in review posts on the subject: “Pay disparity by gender highlighted, disputed” and “White House study shows persisting gap in wages, despite education advancement.”)

The re-emergence of the Equal Rights Amendment

The Supreme Court’s decision has inspired lawmakers to reintroduce the Equal Rights Amendment, an amendment that was first introduced in the 1920s. The amendment, which has stated “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex,” came the closest to ratification in the 1970s when it was passed by Congress but fell three states short of the 38 needed to approve it.

Rep. Carolyn Maloney and Sen. Robert Menendez, both Democrats, announced the effort Wednesday, with the House bill co-sponsored by nearly 160 members, and Maloney specifically referenced the Wal-Mart case:

“The Equal Rights Amendment is still needed because the only way for women to achieve permanent equality in the U.S. is to write it into the constitution. While it’s been thrilling to see how far women have come in my lifetime, laws can change, government regulations can be weakened, and judicial opinions can shift…

“The Wal-Mart case decided by the Supreme Court this week is a classic example of how far attitudes must still come. The facts of the case support the view that over a million women were systematically denied equal pay by the world’s largest employer.”

Round-up of coverage

For more on the news and opinions surrounding the Wal-Mart decision, check out some of the links below:

This is the Gender Report’s Week in Review, a weekly post that highlights some of the major stories related to gender issues this week. Some of these stories may have already appeared in our News Feed or in the week’s Gender Checks. We’ll at times include a longer analysis of stories as well as bring attention to stories that may have slipped through the cracks of the week’s news cycle.