Copyright ©2011 Paula J. Caplan All rights reserved
What's Wrong with the Wal-Mart Decision
American women and men alike are stunned when I tell them that Canada in a matter of weeks decided to incorporate a provision banning sex discrimination into their equivalent of our Bill of Rights, the Canadian Charter of Rights and Freedoms. Responding to their curiosity about how that had happened in 1981, when in 2011 the U.S. is still far from passing decades-old proposals for an Equal Rights Amendment, I speak from what I learned living in Toronto for nearly 20 years: In the U.S., the emphasis among citizens, legislators, and the courts tends to be on rights, but in Canada that emphasis is paired with one on fairness.
As a result, when plaintiffs in a case about discrimination are able to demonstrate a clear pattern of bias based on sex, race, or other group membership, the average American is more likely than the average Canadian to worry about the loss of privilege of the group that has historically had the upper hand.
This week's U.S. Supreme Court decision in Wal-Mart Stores, Inc. v. Dukes et al. highlights not only an emphasis on rights of the corporation over the individual, a longstanding pattern in the Roberts Court, but also the lack of seriousness with which that court and many others in this country regard sexism.
Knowledgeable attorneys have observed that the plaintiffs' counsel in the Wal-Mart case used faulty strategy in the way they filed the suit, and that may well be. But the Supreme Court justices nevertheless have wide scope in writing their decisions, and they could easily have focused on procedural or definitional problems (deciding what is a legitimate class for such a lawsuit) while in addition making a strong statement that sex discrimination is wrong.
I write this as someone who is not an attorney and who is fascinated that people who are attorneys, including many feminist ones, are talking about this case primarily to say, "The plaintiffs' counsel was dead wrong to assert that Wal-Mart's women employees constitute a class. The argument should have been made that a small number of women were all discriminated against by the same manager. Then if they proved discrimination, both the manager and the CEO would have been held liable."
"Yes," I reply, as a non-lawyer, "but only that small number of women would be compensated, and a main point of this lawsuit is that Wal-Mart women have less money and less power than Wal-Mart men and certainly than its corporation. So the vast majority of women could not bring lawsuits and would remain uncompensated."
Like ostriches, the all-male majority of justices focused on the plaintiffs' alleged failure to comprise a legitimate class, but the corporation's well-documented, widespread pattern of discrimination against women for pay and promotions, combined with the ongoing pervasiveness of sexism throughout this society, speaks loudly of the corporation's treatment of the women as a class. For instance, as Justice Ruth Bader Ginsburg wrote in a dissenting opinion, "Women fill 70 percent of the hourly jobs in the retailer's stores but make up only "33 percent of management employees." Justice Antonin Scalia's statement in the majority decision that a class-action lawsuit was unwarranted because the plaintiffs failed to show that managers at 3,400 Wal-Marts acted in common to discriminate against the women reveals a striking lack of understanding of how bias and oppression work. Just imagine what an outcry there would be if a court declared, for instance, that poll workers in a particular county had not assembled together and decided to prevent Black people from casting ballots and that therefore racism could not have been at play in the outcome of significantly higher proportions of Blacks than of others being deprived of their votes. And it is hard not to wonder if the sex bias would have been more obvious to the justices if it had been white men who were the targets of discrimination.
In a society riddled with bias, the default position of most individuals raised in that society is to discriminate. No edicts from corporate executives or exhortations at meetings of top and middle managers are necessary to implement oppression, because bias does its work through the lifelong beliefs, often unconscious or at least unexamined, and practices so common that it is easy to assume they are unproblematic: "Everybody does it." Thus, Scalia's statement that the women did not constitute a class because Wal-Mart's official policy prohibits sex discrimination is moot, both because a policy is worthless if it's clear to those who might implement it that no harm will come to them if they flaunt it and because, as Scalia noted, Wal-Mart managers have wide latitude to make their own decisions. And as Justice Ginsburg wrote, "Wal-Mart's supervisors do not make their discretionary decisions in a vacuum. The District Court reviewed means Wal-Mart used to maintain a "carefully constructed. . . corporate culture," such as frequent meetings to re- inforce 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 plaintiffs' evidence, including class members' tales of their own experiences,4 suggests that gender bias suffused Wal-Mart's company culture. Among illustrations, senior management often refer to female associates as ‘little Janie Qs.' ...One manager told an employee that "[m]en are here to make a career and women aren't.""
Related to this, in the Voices of Diversity Project, which we conducted at four different sites in the U.S. in a study co-administered through the DuBois Institute at Harvard University and Educational Testing Service of Princeton, N.J., we found a striking pattern. Undergraduate students overwhelmingly described sexism as a less serious problem than racism. Despite the fact that those same students were more likely to have experienced, observed, or heard about acts of sexism than of racism on their campuses, and despite the fact that the sex-based ones were far more likely than the race-based ones to involve physical acts including violence, from men grabbing and groping women to raping them, the majority of our participants said that they find racism more upsetting and consider it more of a problem that needs to be dealt with than sexism. Sexism, some even suggested, is only natural.
It is not, of course, a question of whether mistreatment of one class is worse than mistreatment of another, since all such conduct is wrong. It is that the harm done by sex-based discrimination is minimized in the U.S., kept relatively invisible compared to other forms of discrimination. The Wal-Mart decision reflects the lack of seriousness with which sexism is taken at the highest levels. The Roberts Court and other courts have often found ways to rule in favor of particular principles, sometimes by following reasonable procedures and sometimes by outlandish deviations from them. By forcing women to file suit individually or in much smaller groups, this court uses a divide-and-conquer approach: An effect of denying to certify the class is that women who have been discriminated against have less strength in numbers, even if some of them do bring their own individual complaints or smaller class actions. That delays the progress of equality in this country even more than the contrast shown with Canada's writing of its Charter in 1981.
Again writing as a non-lawyer, I am struck by what seems to me the problem of circularity here. Some years back, Harvard University planned to change its policy of dealing with sexual assault, so that in order to get a hearing, the victim of assault first had to prove the assault had occurred. Attorney Wendy Murphy took action to put a stop to that policy, because isn't that what hearings are supposed to be about, to be given a chance to prove the assault took place and who committed it? (Murphy won her point, and Harvard retracted the policy.) I see a parallel here, to the extent that proving that a group constitutes a class that is the target of discrimination that pervades the corporation is required in order for the class as a whole to get the chance to provide further evidence of that discrimination. I say "further" because it is reasonable for persons asking to be considered a class to present some compelling evidence that they are treated in similar ways. The Canadians' greater emphasis on fairness would lead to higher regard for data showing that women of Wal-Mart are clearly paid less and promoted less than men.
Incidentally, after reading this essay as it was first posted, Murphy contacted me to point out that at the time of her challenge to Harvard's proposed change in sexual assault policy, Larry Summers, then President of Harvard, said that Title IX (which prohibits sex discrimination in educational institutions) has "nothing to do with rape." That he could make such an assertion, given that a disproportionately high percentage of rape victims are female, and given that being sexually assaulted can in many ways interfere with one's feelings and ability to obtain an education, illustrates not only the minimizing but even the invisibility of sexism referred to above.
Perhaps the plaintiffs' counsel could have based a lawsuit on a hostile workplace argument, pointing out the damaging effects of having to walk into one's place of employment each day, knowing that because of being a woman, one's chances of being paid as much as a man doing the same job with the same skills and outcomes and of being promoted as readily as a man with equal qualifications and work habits are abysmal.
Reposted June 29, 2001, at http://www.commondreams.org/view/2011/06/29-3