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Too big to sue: Wal-Mart versus women

When the Supreme Court disallowed a discrimination case against the giant retailer, it hurt workers across the nation
By EDITORIAL  |  June 27, 2011


Wal-Mart versus women 

Getting screwed just isn't enough. Stripped of all the legal mumbo-jumbo, that's what the five Republican-appointed justices on the Supreme Court decided when they threw out claims that Wal-Mart's 1.5 million female workers were systematically discriminated against, denied an equal shot at promotion, and awarded lower raises than their male coworkers.

Truth be told, this was an extremely complex case. The justices appointed by Democrats joined with conservatives to unanimously turn the case down. These four liberal-to-moderate judges — three of whom are women — nevertheless had hoped to see the case return to lower courts so that it might proceed in a different manner, while their Republican colleagues were happy to kill the case dead when they had the chance.

Justice Antonin Scalia, the finest medieval mind to sit on the court in recent memory, wrote the opinion for the Republican majority. According to Scalia's perverse and peculiar reading of the case, it was not a matter of men faring better than women in stores across the nation.

Not at all.

Scalia, in effect, reasoned that all was right with the worker serfs at Wal-Mart because the world's largest retailer had never adopted a formal, explicit policy of male favoritism; had never decided that the working moms might settle for less; and had never issued a memo saying men had first dibs on better jobs and higher pay.

This raises a number of questions.

The first are philosophical. Why is it that, when Republican justices ruled on the ability of corporations to make unlimited, unregulated political expenditures in order to buy candidates and influence public opinion, they considered businesses to be individuals, with all the rights and prerogatives of a citizen?

And yet when it comes time to evaluate corporate responsibility, why are those same huge, publically owned, multi-billion-dollar retailers such as Wal-Mart are absolved of individual responsibility and judged as if they were faceless, mechanistic enterprises that cruise along on autopilot?

The answers have to do with the worldview of the four arch-conservative right-wingers and the one moderate conservative who constitute the court's working majority. In essence, these justices see the nation as divided into two estates: the rulers and the ruled. As good Republicans, they are on the side of the rulers. It is that simple.

The remaining questions have to do with how Wal-Mart has conducted itself since the group of six women, acting on behalf of their coworkers, sought to bring the retailer to justice a decade ago.

To get to the heart of this, consider the status of women when the case, known as Dukes v. Wal-Mart, was filed. Back then, 70 percent of Wal-Mart's hourly employees were female, while only 30 percent of their supervisors were women.

Today, women represent 40 percent of Wal-Mart's supervisory cohort.

Why the difference?

Because in the intervening years Wal-Mart realized that it was courting trouble.

The retailer realized that its policy of granting managers the right to award promotions and raises with a tap on the back rather than a formal process was unfair. More important, it could cost Wal-Mart millions — maybe billions — in damages if women were successful in proving that Wal-Mart's management practices favored men over women.

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