Gerry Canavan

the smartest kid on earth

Too Big To Be Sued?

with 7 comments

The Supreme Court just enshrined “one death is a tragedy; a million is a statistic” as a principle of U.S. jurisprudence; it just determined that a class action lawsuit against Wal-Mart for gender discrimination can’t go forward as the class of women affected is too large. The majority’s decision actually seems to threaten the very possibility of class action lawsuit altogether:

In the majority opinion written by Justice Clarence Thomas, the justices said when plaintiffs seek individual relief such as back pay or reinstatement, the company has “the right to raise any individual affirmative defenses it may have, and to ‘demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.'”

[UPDATE: I think UPI has this wrong; the actual opinion seems to have been written by Scalia.] So, to review: (1) discrimination is now fine so long as your illegal practices are sufficiently widespread, and (2) big companies should really only have to answer to the courts on a discrete, case-by-case basis. Enjoy your plutocracy!

7 Responses

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  1. gerrycanavan

    June 20, 2011 at 12:18 pm

  2. The opinion said that Wal-Mart as a whole didn’t discriminate, but that hiring practices were left up to individual store managers. Left unsaid is what sort of guidelines (formal or informal) HQ handed down to store managers as to what are acceptable hiring practices and what are off limits. With the overwhelming disparity in numbers (women are 70% of hourly workers but only 33% of management) there’s no way this is anything but standard company policy. Basically, it’s the same “a few bad apples” defense that was used for Abu Ghraib – it was just low-level staff perpetrating the atrocities, and the top brass didn’t know such a thing was going on. Like the Rumsfeld Department of Defense, I’d guess Wal-Mart was smart enough not to memorialize their policies in writing.


    June 20, 2011 at 12:40 pm

  3. I’ve been talking with a (ex-)lawyer friend on Google over this and that’s the issue I can’t get over. With women paid less and in the worst jobs companywide, it seems to me that the “systematic discrimination” case is sufficiently proved on the face of things. With 1.5 million women affected, it’s not like it’s just a coincidence.


    June 20, 2011 at 12:44 pm

  4. It’s not even a question of whether Wal-Mart was guilty of discriminatory hiring or promotional practices, or if these practices were widespread. That would have been something for the result of the lawsuit to decide. The issue here is, the Court has decided not even to let that suit go forward, sending a pretty clear message that (as Gerry points out) if your actions affect enough people and are sufficiently widespread — if you are, in effect, a multi-billion-dollar company — you cannot be held accountable in any effective manner.


    June 20, 2011 at 1:35 pm

  5. […] on yesterday’s Walmart v. Dukes decision from Dahlia Lithwick and Scott Lemieux. Here’s Lemieux: …if you can’t use […]

  6. By dismissing class status, Scalia’s basically saying that each individual hiring decision is unique, and thus there’s none of the commonality that a class action requires. Following this logic, a company that willfully dumps toxic waste can’t be subject to class actions suits, because each plaintiff/victim’s cancer is unique. This decision has the potential to completely eviscerate class action lawsuits, undoubtedly to the delight of Scalia and Roberts’ corporate overlords.


    June 21, 2011 at 12:06 pm

  7. Pete —

    It’s a bad ruling for the reasons you note in your first comment, but it doesn’t preclude the toxic tort class action you’re talking about. Put somewhat simply, Scalia’s point was not that the Wal-Mart plaintiffs’ *damages* were different (as in your toxic tort example), but that they were subject to such varied employment decisions that you could not determine on a classwide basis whether there was any liability for discriminating against them in the first place.

    This is a very bad decision for *employment discrimination* class actions (and, more importantly, for employment discrimination itself) because it reduces the cost to employers of being entirely indifferent to (or even quietly supportive of) illegal discrimination by requiring an affirmative policy that is discriminatory.


    June 21, 2011 at 6:13 pm

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