Wal-Mart decision sets precedent for job bias

WASHINGTON – Women and minorities who think they are underpaid will find it nearly impossible to band together to sue employers for discrimination under a Supreme Court ruling against 1.5 million female Wal-Mart employees in the most important job-bias case in a decade.

Only if there is proof a company has a policy of paying less to women or minorities can the employees file a class-action suit, the court said in an opinion Monday by Justice Antonin Scalia. Even statistics showing that a company’s female workers earn far less and get fewer promotions than men will not suffice, the court said.

The decision is the latest in a series of major rulings favoring business under the stewardship of Chief Justice John Roberts.

Columbia University law professor John Coffee said the Wal-Mart ruling all but sounds the death knell for class-action suits against employers that seek money. “This significantly changes the balance between employers and employees. And it largely eliminates the monetary threat facing big employers,” he said. Lawsuits are expensive to bring, “and if there is no money relief at the end of the road, there is no incentive to bring the suit,” he said.

The Wal-Mart case has been seen as a key test of whether civil rights lawyers, armed with data on wages, could force the nation’s largest employer to stand trial and face billions of dollars in potential liability. Had Wal-Mart lost, other similar suits against nationwide retailers were in the offing.

While the justices all agreed that the employees had no right to group damages under the court rule they cited in their suit, that unanimity masked a fundamental split over the extent of discrimination at Wal-Mart and the amount of proof required to proceed with a class action.

Speaking for a 5-4 conservative majority in the central holding, Scalia said this class-action claim and others like it are doomed without “convincing proof of a companywide discriminatory pay and promotion policy.”

Pointing to a provision of the federal rules of civil procedure requiring a class action to have “questions of law or fact common to the class,” Scalia said this suit does not get to first base.

He said Wal-Mart has 3,400 stores spread across the United States and leaves it up to store managers to decide on pay levels and promotions.

“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,” Scalia said.

“Significant proof that Wal-Mart operates under a general policy of discrimination is entirely absent here,” he said.

Roberts and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. agreed with Scalia in Wal-Mart v. Dukes.

Scalia said this suit was flawed for another reason. A single class-action claim that supposedly speaks for a huge number of people does not entitle all of them to “an individualized award of monetary damages.”

Ruth Bader Ginsburg, joined by Sonia Sotomayor, Elena Kagan, and Stephen G. Breyer, agreed that Wal-Mart could not be forced to pay damages to all these women without individual hearings under one court rule, but argued forcibly that there was substantial evidence of discrimination and that the case should have been allowed to proceed.

Ginsburg pointed to data obtained from Wal-Mart that painted a portrait of a “company culture” that was biased against them. For example, while women hold about 70 percent of the hourly jobs, they make up only 33 percent of the management employees.

“The plaintiffs’ evidence, including class members’ tales of their own experiences, suggests that gender bias suffused Wal-Mart’s company culture,” Ginsburg wrote. “Among illustrations, senior management often refer to female associates as ‘little Janie Qs,’” she said.

Giving male managers a free hand to make decisions on pay and promotions can, and apparently did, lead to discrimination, she said.

The decision did not absolve Wal-Mart of the allegations that it had short-changed its female employees. Rather, the justices decided that the suit did not fit the rules for class-action claims. Individuals can still file discrimination suits.