Wal-Mart gender discrimination decision could change rules for class action suits

The Supreme Court handed down a decision Monday morning that not only impacts the treatment of women within the Wal-Mart corporation, but could also change the rules of class action lawsuits, and give companies permission to look the other way from unfair practices, the National Women's Law Center said.

"We really believe this decision went the wrong way, but the fight continues," Fatima Goss-Graves, the NWLC's education and employment vice president, said in a press call. "[The women] will continue to pursue their claims, and they should. It's important that they do, because this kind of discrimination cannot stand."

The decision for the case, Wal-Mart v. Dukes, cites the sovereignty that Wal-Mart gives to its individual managers to decide pay, which the women in the suit claimed skews against women on all levels and in all roles, from the blue-vested greeters in the front of the store to the buttoned-up female vice presidents.

"Respondents wish to sue for millions of employment decisions at once," the court's decision reads. "Without some glue holding together the alleged reasons for those decisions, it will be impossible to say that examination of all the class members’ claims will produce a common answer to the crucial discrimination question."

More than 1.5 million women took part in the class action suit, the biggest in history.

Goss-Graves was also concerned that the opinion seems to imply that the suit wasn't legitimate because Wal-Mart's corporate policy forbids gender discrimination, and there's no way to prove that there was a "general policy of discrimination," as a Title VII complaint requires.

"Wal-Mart says, 'We're so big, how are we supposed to know what manager A is doing and what maager B is doing?'," Goss-Graves said. She called it "concerning" that Wal-Mart seemed to be insisting that the best they could do was have a formal policy, and not enforce it.

In fact, the dissenting opinion cited specific evidence that there was control within the company.

"Wal-Mart’s supervisors do not make their discretionary decisions in a vacuum," reads the dissent. "The District Court reviewed means Wal-Mart used to maintain a “carefully constructed corporate culture,” such as frequent meetings to reinforce the common way of thinking, regular transfers of managers between stores to ensure uniformity throughout the company, monitoring of stores “on a close and constant basis,” and “Wal-Mart TV,” “broadcas[t] . . . into all stores.”

The decision's implications for what qualifies as a class action suit will reveal themselves with time, Goss-Graves said. (All justices agreed that the case did not meet the requirements for a class action suit.) The financial cost and hefty time commitment being a plaintiff in an individual suit is not a burden everyone can bear, not to mention the mental distress of fighting a very public courtroom battle. In this case, the suit spans a ten-year history.

"It is extremely difficult to be [lead plaintiff] Betty Dukes," Goss-Graves said.

It's possible that the suit could end up reincarnated in the Supreme Court down the line, or the women may choose to file suit individually, but in the immediate aftermath of the decision, experts are still picking over the language and its implications for businesses, the court and the women themselves. The NWLC has planned rallies of solidarity across the country for Tuesday.

All three sitting female Supreme Court justices dissented, and were joined by Justice Stephen G. Breyer in the 5-4 vote.