Too Big to Succeed

Remember when we were told a couple of years ago about the banks that were “too big to fail”? Well, the Supreme Court ruled today, in effect, that the class-action sex discrimination suit filed by a million and a half women against Wal-Mart was, well, too big to succeed.

Or at least today’s ruling in Wal-Mart v. Dukes certainly seems to be based on that rather curious premise. True, there’s some legalistic mumbo-jumbo in there, and it appears that in strictly legal terms the women filed the wrong kind of claim (that was the unanimous decision of the court). But ultimately, the problem was that they couldn’t provide the “glue” (Justice Antonin Scalia’s word) that held every presumed member of the class together. In the majority opinion, then, the “[respondents’] wish to sue for millions of employment decisions at once” is at the crux of the problem. In other words, the suit was simply too big.

The key word was “commonality.” Here’s Justice Scalia for the majority:

Commonality requires the plaintiff to demonstrate that the class members “have suffered the same injury.” This does not mean merely that they have all suffered a violation of the same provision of law. Title VII, for example, can be violated in many ways—by intentional discrimination, or by hiring and promotion criteria that result in disparate impact, and by the use of these practices on the part of many different superiors in a single company. Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate-impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.

What matters to class certification . . . is not the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.”

OK, if I’m reading this correctly, what all this means is this: in order to file a class action suit, complainants must demonstrate that they suffered precisely the same injury from precisely the same source. The only way to demonstrate that would be to affirmatively prove a corporate culture whereby personnel decisions at individual stores, while presumably made locally, are in fact sufficiently influenced by a corporate culture that the decisions of a manager in California are in fact not independent of those made by a manager in New Jersey. That’s a very high hurdle, indeed, one which the majority (the usual suspects—Roberts, Scalia, Thomas and Alito—plus the occasionally free-thinking Kennedy) did not think had been met.

If that really is the standard, I’d have to agree with them. That is, if you really have to prove that the cashier who didn’t get a raise in Topeka and the model employee who was passed over for promotion in Ashtabula are victims of precisely the same decision-making process, I’m not sure you can get there. But, of course, here’s where there is dispute among the various justices. Justice Ruth Bader Ginsburg, writing for a minority which perhaps not-so-coincidentally included the other two women on the court (Kagan and Sotomayor), plus Breyer, argues that the very act of ceding authority to local managers is a consistent policy: “Wal-Mart's delegation of discretion over pay and promotions is a policy uniform throughout all stores.”

She also cites the precedent of Franks v. Bowman Transp. Co., in which “We recognized that the ‘qualification[s] and performance’ of individual class members might vary. ‘Generalizations concerning such individually applicable evidence,’ we cautioned, ‘cannot serve as a justification for the denial of [injunctive] relief to the entire class.’” For Ginsburg, the question isn’t whether common questions are the “glue” that joins all the complaints together, but rather whether such concerns “predominate” over individual matters.

For the majority, however, the fact that the corporation has a non-discrimination policy and procedures for filing discrimination complaints is sufficient to absolve Wal-Mart as a corporation from responsibility for the actions of dozens (hundreds? thousands?) of its managers, even if those individual actions were in fact discriminatory. Justice Scalia even snarkily observes that the women’s case has a mere 120 affidavits (“about 1 for every 12,500 class members—relating to only some 235 out of Wal-Mart’s 3,400 stores”).

On this point, it seems to me that the good Justices could use a bracing jolt of the real world. Every corporation in the country has a non-discrimination policy; every one has an appeals procedure. These don’t exist because companies believe in equal opportunity; they exist because companies want to seem to believe in equal opportunity. They exist because their lawyers tell them—with cause, apparently—that some judge somewhere will be stupid enough to believe that a corporation’s public declarations have anything whatsoever to do with its actual day-to-day decision-making. If Mr. Scalia and his cronies got out more, they’d know that there are a million subtle and not-so-subtle ways of allowing all manner of discriminatory practices. Having a policy and enforcing it, in other words, are independent concepts.

Be it noted: the Court didn’t actually decide on the merits of the discrimination case, only on whether the women can legitimately be termed a class. The corporation’s official statement, then, that the decision “pulls the rug out from under the accusations made against Walmart over the last 10 years” is, like virtually everything else to come out of that company’s upper management, so much bullshit. There is no vindication of Wal-Mart’s actions here, only of their narrowly defined legal position.

There is, of course, plenty of evidence of discrimination: evidence in the form of anecdotal testimony, of statistics, of expert testimony about corporate culture. Indeed, Justice Ginsburg lays out the statistical case pretty well in her dissent:

Women fill 70 percent of the hourly jobs in the retailer’s stores but make up only “33 percent of management employees.” “[T]he higher one looks in the organization the lower the percentage of women.” The plaintiffs’ “largely uncontested descriptive statistics” also show that women working in the company’s stores “are paid less than men in every region” and “that the salary gap widens over time even for men and women hired into the same jobs at the same time.”

The ramifications of the decision are considerable: proponents of both sides agree that the ruling is probably the most important consideration of the notion of class action in a decade or more. Business advocacy groups, or at least those who, like the national Chamber of Commerce, represent largely major corporations, are thrilled because today’s ruling makes it more difficult for complainants to join resources, or indeed to exact significant penalties from deep-pocketed defendants.

On the other side, of course, are those who, like Joseph M. Sellers, a lawyer for the plaintiffs, believe the majority “reversed about 40 years of jurisprudence that has in the past allowed for companywide cases to be brought challenging common practices that have a disparate effect, that have adversely affected women and other workers.” Even more scathing—and no less accurate—is the critique of Marcia D. Greenberger, co-president of the National Women's Law Center, who said “the court has told employers that they can rest easy, knowing that the bigger and more powerful they are, the less likely their employees will be able to join together to secure their rights.”

The women at the forefront of the case have vowed to fight on, and they may well succeed, either as individuals or as members of smaller, more homogeneous classes. But Wal-Mart is playing a divide-and-conquer game here, and will now be able to discount the most significant testimony against the corporation. They will, in other words, claim—just as Justice Scalia says they will—“to have been applying some sex-neutral, performance-based criteria—whose nature and effects will differ from store to store.” In other words, it just sort of worked out, corporation-wide, that men got more management opportunities, more raises, and all that stuff—and for a veritable cornucopia of different reasons. Coincidence is a wonderful thing, isn’t it?

As I’ve said here before, as in the case of the Westboro Baptist Church or the Silsbee High School cheerleader, what is legal is not necessarily what is just. That may be the women’s problem: they sought justice from a multinational monstrosity and from the Supreme Court. The former is unwilling, and the latter unable, to provide it.