(WOMENSENEWS)–One of the best analysis pieces this week about the big rebuff by the Supreme Court to Wal-Mart’s female workers came from Lila Shapiro at the Huffington Post.
In recent years, class actions have been employed by workers–particularly lower-wage workers–as a substitute for the force that collective bargaining wielded in an era of broader union representation, Shapiro wrote in "Walmart: Too Big to Sue."
"By banding together in large-scale lawsuits, workers have effectively organized themselves into unified, powerful voices, gaining leverage in negotiations with management," Shapiro said.
In this case, a large national voice of female workers was found to be too big to certify as a class, since they were spread out among as many as 3,400 stores and worked for a wide variety of managers.
Wal-Mart is the country’s largest private employer. Apparently, once a company reaches such stature, its workers cannot claim common ground, even if the profits they help generate flow toward the same bottom line.
"In a sense the court has said, the banks we have were too big to fail, with Wal-Mart we have too big to sue," Ken Jacobs, chair of the Labor Center at University of California-Berkeley, was quoted as saying by Shapiro. "Basically if you’re saying that the overall corporation is off the hook for what local managers are doing, that removes the incentive for corporate headquarters to really pay attention and to set up structures to make sure you do have the law being followed."
That’s why the 5-4 decision is being widely seen as so wounding to wide swaths of workers; so favorable for the relatively few who wield corporate clout.
Almost immediately, women in other large class actions were sensing the repercussions. Costco Wholesale, for example, may be able to block women accusing it of gender bias from suing as a group because of the ruling, Bloomberg News reported June 23.
Linda Basch and Elizabeth L. Grayer decried the decision in a June 23 joint column in the Star Ledger and reminded readers of how many other underpaid women in the United States were, broadly speaking, represented by this suit.
Women are still paid 77 cents to every dollar a man earns," they wrote. "And the cost of pay discrimination to women and their families has been estimated to average $500,000 over a lifetime, and as much as $2 million or more for professional women."
The High Court had no precedent for coming down so heavily on a group of plaintiffs. It was simply being asked to rule on whether the women could certify as a class, not whether they could win the case.
"For 45 years, since Congress approved the criteria for class actions, the threshold for certification of a class has been low, with good reason because certification is merely the first step in a suit," The New York Times editorialized on June 20. "Members of a potential class have had to show that they were numerous, had questions of law or fact in common and had representatives with typical claims who would protect the interests of the class."
That’s why the majority opinion, written by Justice Antonin Scalia, is considered so discouraging to class actions in general.
Fights Yet to Come
The justices, meanwhile, said nothing about the women’s underlying charge of bias on pay and promotion. Those fights are yet to come; possibly store-by-store and region-by-region, according to a plaintiff’s lawyer quoted by The New York Times.
Justice Ruth Bader Ginsburg wrote the dissenting opinion and was joined by Justice Stephen Breyer and the two other women on the court: Justices Sonia Sotomayor and Elena Kagan.
Ginsburg would have allowed the Wal-Mart women to proceed with their case under another class-action category. She spoke out against the court disqualifying the women "at the starting gate," according to a story in The New York Times. She also cited the low proportion of women in management–30 percent–given the female-majority work force.
Could managers with a broad leeway in determining who gets paid what and who gets promoted all be subject to the same male bias? Ginsburg didn’t think it could be ruled out. "Managers like all humankind, may be prey to biases of which they are unaware," she wrote.
This enormous, time-consuming, 10-year case is likely to sensitize managers far beyond the walls of Wal-Mart stores to gender bias. But whether they decide to change anything could depend on the multiple law suits still to come, brought by individual women and smaller groups of workers.
Lead plaintiff Betty Dukes and other women are vowing to push on.
Women’s advocacy groups have protested the decision, according to Ms. Magazine’s Feminist Wire. On June 21, many rallied outside the Supreme Court and rallies were held in other cities, including San Francisco, Boston, New York and Philadelphia.
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Corinna Barnard is editor of Women’s eNews.