Supreme Court to review Walmart gender-bias class action

A group of women employees is suing Walmart for discrimination, charging the nation's biggest retailer with underpaying female workers and denying them equal opportunities for promotion. Two federal courts have ruled that their suit can proceed as a class action on behalf of between 500,000 and 1.5 million women, but on Monday the Supreme Court announced it would review that decision. It looks suspiciously like another case in which the court's conservative majority will twist a procedural rule to prevent victims of discrimination from getting a fair chance at justice.

The women workers have set out a classic case of large-scale sex discrimination. They allege that women at Walmart and Sam's Club are paid less than men are even if they have more seniority and better performance reviews. They say women get fewer promotions and wait longer before getting promoted.

The women also put on evidence that executives used sexist language. Sam's Club managers, they say, often referred to women workers as "girls" or "little Janie Q's." And they put on evidence that about 65% of Walmart's hourly workers were women, while only about 33% of management employees were.

When the Supreme Court hears arguments in the case — most likely next spring — it will not hear the actual claims of discrimination. Instead, it will consider whether the courts below were right to allow the women to go forward on behalf of such a large class of employees and former employees. It is a procedural question, but the answer the court gives will have a big impact on the women's substantive rights.

Class action is a legal tool that makes it much easier for little-guy and little-gal victims of discrimination to sue. A female cashier at a Walmart in Oklahoma who is underpaid and unfairly passed over for promotion may not be able to find or afford a lawyer to represent her. But when a large number of women like her get together and sue as a class, they can usually get lawyers to take their case. They are also more likely to have the resources to put together the sort of complex proof — including statistical evidence and expert witnesses — necessary to win such a complicated case.

To proceed as a class, the women need to show that they are all affected by the same discriminatory policies. In the lower courts, the women successfully argued that Walmart's management practices are similar from store to store and that the company exercises a great deal of centralized control over its 3,400 U.S. stores. Walmart insists that the women are too diverse a group — working in too many places, in too many different job categories — to be considered a single group. The U.S. Court of Appeals for the Ninth Circuit agreed with the women, ruling that they could bring their suit as a large class action.

Businesses, not surprisingly, hate big class-action lawsuits. The cost of defending them can be so large that there is pressure to settle. And if the plaintiffs win, the damage awards can be stratospheric. A Who's Who of Big Business has lined up behind Walmart, including Altria Group, United Parcel Service, PepsiCo and General Electric.

And they may well have a sympathetic audience at the Supreme Court. Its decision to take the Walmart case fits into a larger pattern. Again and again, the court's conservative majority has used legal technicalities to slam the courthouse door on litigants who have valid civil rights and civil-liberties claims.

In 2007, the court threw out Lilly Ledbetter's lawsuit charging that Goodyear Tire & Rubber paid her less than it paid male managers. By a 5-to-4 vote, the court ruled that she had missed the deadline for filing — although at the time the court said she should have filed, she had no way of knowing she was being underpaid. The decision was such a wild distortion of what the civil rights law actually said that Congress quickly passed a new law overturning the court's bizarre interpretation.

That same year, when a group of citizens charged that President George W. Bush's White House office on faith-based initiatives violated the separation of church and state, the Supreme Court — again by a 5-to-4 vote — said the citizens did not have standing to challenge the alleged constitutional violation. Their interest, as mere taxpayers, was too minor, the court insisted, to give them a legitimate stake in challenging the program. The court's perverse interpretation of standing rules meant that there was no way for citizens to ensure that the First Amendment's bar on funding religion was being respected.

When it comes to the law, small technical rules can make a big difference. For plaintiffs like Ledbetter, they can mean the difference between getting a fair hearing and not getting one. For inmates on death row, how the rules are interpreted can literally mean the difference between life and death.

If the Supreme Court overrules the class-action decision in the Walmart case, it seems inevitable that many women employees and former employees will never get a chance to bring their own claims. If Walmart did not discriminate — Walmart denies the charges, and nothing has been proven yet — it should win its case. But if it did, it should not be able to prevail by making it too expensive and too difficult for many of the women to get their day in court.

(Published by Time - December 8, 2010)