Walmart Lawyer-Bomb Fails to Explode

The Supreme Court unanimously slapped down class certification for the largest class-action lawsuit in American history today, in which an estimated one point six million female Walmart employees had sued the retail giant for sex discrimination. Had the lawsuit been upheld, Walmart would have been financially disemboweled, hemorrhaging money until the exurbs of middle America veritably glowed with new flatscreen televisions.

wachovia_138/Flickr

Probably purchased from Walmart, so what goes around comes around, I guess.

The legal issues are a little argy-bargy, but the gist of Justice Antonin Scalia’s opinion for the court was, a) you haven’t shown me a discriminatory policy, b) your backpay claims are invalid for class-wide resolution, and c) screw you, hippies. Scalia, Defender of What Is Right and Just, As Long As It Is Also Staunchly Conservative and In No Way Related to The Gays, tends to couch his opinions in some vehement language. This was no exception.

Now, before Jezebel starts firing up the torches and honing the pitchforks to hunt down those women-hating patriarchal old farts at the Supreme Court, let’s consider one word: unanimously. That means that Ruth Bader Ginsberg, unabashed Guardian of Everything Womanly and Liberal (and rightly so), signed off on this one.

Betrayal! Or not, actually. Because this Walmart case is what in technical terms is called legal fucking idiocy. You would be amazed just how much idiocy a lawfirm will cough up when they have the prospect of getting 40% of the largest class-action settlement in history deposited directly into their well-oiled coffers at the end of it.

The unanimous decision was about backpay. Now people unfairly passed over for promotion on account of gender, race, or tendency to shop at Hot Topic have every right to backpay. But the backpay one person gets isn’t remotely connected to the backpay another gets; questions of fact as to when, why, and how they were discriminated against are unique to each case, giving different payouts. The class action dog just won’t hunt.

But without backpay, there’s—gasp—NO MONEY! And without money, there’s no lawyers, or at least no lawyers with enough time, dedication, money and chutzpah of their own to confront the Alexandrian behemoth that is Walmart’s legal army. That’s pretty much the standard strategy for big corporations fighting the little guy these days: make it too expensive for him to even try to win, and you never risk losing. Scalia and the right wing of the court have done their bit to help this strategy keep working with the second part of today’s ruling—eviscerating the right to sue for discrimination based on effect, rather than the company’s intent.

Walmart’s alleged discrimination stemmed from giving too much discretion to local managers, creating a ridiculous imbalance in promotion and pay. 70 percent of the workforce are women, but only 33 percent of Walmart’s managerial employees are female. This kind of stark imbalance has previously been upheld as a basis for discrimination claims—not that it stopped Scalia from pounding the theory into pasty legal pulp.

That part squeaked by on a 5-4 holding, but it might have had less support if there weren’t already a 9-0 holding creating the same result. The sad fact is that had the women just sought declaratory and injunctive relief (forcing Walmart to change their discriminatory policies), they would have had a much better chance of snatching the Kennedy snitch and winning this game.

Then they could go and individually litigate backpay claims. They would all have their own lawyers, of course, who would take the huge payout piecemeal, and nobody’s coffers would overflow with bounteous dolla billz.

So don’t blame the Supreme Court for letting Scalia run away with this one, pitchfork-wielding feminists: blame the lawyers.

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