Wal-Mart v. Dukes ruling is out of sync with 21st-century sex discrimination
| Brooklyn, N.Y.
The Supreme Court鈥檚 ruling in favor of 鈥渢he world鈥檚 biggest boss,鈥� as GritTV鈥檚 Laura Flanders put it, in the Wal-Mart v. Dukes sex discrimination class action lawsuit this week is a major blow to working women across America. And perhaps even more important, it鈥檚 a sign that some of the esteemed judges on our nation鈥檚 highest court need a primer in how contemporary discrimination functions.
The court decided 5-4 that up to 1.5 million former and current female employees couldn鈥檛 file suit against Wal-Mart together as a class because there was scant evidence of institutionally sanctioned or organized discrimination by the company. But women make up over 65 percent of hourly employees at Wal-Mart, and only 34.5 percent of managers. In other words, Wal-Mart 鈥� like so many of America鈥檚 biggest businesses 鈥� has a gender and leadership problem.
In his majority opinion, however, Justice Antonin Scalia argued that numbers like these, coupled with stories about the widespread exclusion of and humiliation of women, didn鈥檛 constitute discrimination because, well, Wal-Mart has a non-discrimination policy.
Further, he wrote that Wal-Mart鈥檚 policy of allowing discretion by local supervisors in employment practices 鈥� importantly, uncharacteristic of the corporation鈥檚 overall micromanaging style 鈥� was 鈥渏ust the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices.鈥�
A lesson in 21st century discrimination
Apparently Mr. Scalia needs a lesson in 21st century discrimination. This is a time in which discrimination of all kinds doesn鈥檛 usually advertise itself on 鈥渨hite鈥檚 only鈥� water fountain signs and 鈥渨oman wanted鈥� ads for secretary positions in Sunday鈥檚 neighborhood newspaper. It鈥檚 a time when racism, sexism, and other forms of discrimination are entrenched in our culture 鈥� insidious, covert, often subtle. It鈥檚 a time when the distribution of power 鈥� money, jobs, influence 鈥� is almost entirely dependent on informal relationships born of a still alarmingly segregated society.
It鈥檚 not company rules that most brave working women have to challenge these days; it鈥檚 informal and widespread exclusion. As Rinku Sen wrote in ColorLines magazine: 鈥淐ertainly, there has been some blatantly sexist behavior among Wal-Mart managers鈥ut mostly, Wal-Mart鈥檚 system runs on silence.鈥�
At Wal-Mart, as with so many American companies, men speak the private language of promotion and negotiation, while women are left confused as to where the pipeline to power and new opportunities even starts. With women still taking on the majority of caretaking responsibilities, their second shift often prevents them from doing the kind of after-hours bonding necessary, were their male managers even willing to bring them into the 鈥渋nner circle.鈥�
Culture is hard to legislate, but it's a real factor
Culture, of course, is harder to discuss, legislate, and change than policies, but that doesn鈥檛 mean that our nation鈥檚 highest court is off the hook. As Justice Ruth Bader Ginsberg pointed out in her dissenting opinion in this, the largest attempted class action suit ever: 鈥淢anagers, like all humankind, may be prey to biases of which they are unaware. The risk of discrimination is heightened when those managers are pre-dominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes.鈥�
It鈥檚 not surprising that all three female judges on the court, all of whom have most likely endured various forms of socially sanctioned discrimination in the past, ruled in favor of the Wal-Mart women. Ms. Ginsberg built a career, in part, prosecuting sex discrimination cases.
The most disturbing danger here is not that Scalia and the other four judges that sided with him seem to deny the continued existence of 鈥済ood old boy鈥� networks as forms of widespread discrimination that company policies can condone or mitigate. The most disturbing danger is that the Supreme Court has now created a precedent whereby plaintiffs, just to move past the pleading stage, must actually prove common harm according to evidentiary standards that are out of sync with the reality of how contemporary sexism most often functions in the workplace. Joanne Bamberger, a blogger at PunditMom and a lawyer, by training, calls this ruling 鈥渢he most activist judicial move I鈥檝e seen in a long time.鈥�
Sexism has gone 'underground'
The irony, of course, is that the feminist movement has done such a good job fighting against institutional sexism, that it is now faced with an enemy that has 鈥� in a sense 鈥� gone underground. It鈥檚 unlikely that male managers at Wal-Mart, even in conservative regions of the country, would feel entitled to advertise their preferences for promoting men, but they still feel just fine inviting the guys from work to Hooters for a managers鈥� meeting 鈥� as real life evidence from the plaintiffs illustrated.
The women of Wal-Mart may not constitute a 鈥渃lass鈥� in Scalia鈥檚 antiquated vision, but they will continue on as a collective. This week鈥檚 decision did not determine whether Wal-Mart has discriminated against individual women, so Joseph M. Sellers, a lawyer for the plaintiffs, told The New York Times that his clients are 鈥渄etermined to move forward鈥� by filing individual claims with the Equal Employment Opportunity Commission. He plans on filing up to several thousand within the next couple of months.
Feminists are famous for arguing that the personal is political; in this case, the cultural is pivotal. It鈥檚 a shame some of our nation鈥檚 most esteemed judges were apparently not able to recognize that.
is the author of and coeditor of the anthology She is an editor at and senior correspondent at .
