Under The Supreme Court, Women May Get The Shaft In Walmart Suit
A class action suit that may include as many as 1.5 million women who claim sex discrimination on the job by Walmart is the biggest in U.S. history — though there are signs it won’t remain so for much longer.
The class action already has been approved by a federal judge and a federal appeals court, but it took a beating during argument at the U.S. Supreme Court last week.
Some analysts had said if the high court even accepted the case for review, instead of letting the lower-court verdict stand, it would be a sign that the 5-4 conservative majority wanted to strike the class certification.
Professor Deborah Hensler of Stanford Law School told the Chicago Tribune last year, “If the Supreme Court takes this case, it will signal this business-friendly court is hostile to class actions against corporate defendants.”
“This is the big one that will set the standards for all other class actions,” Robin S. Conrad, executive vice president of the National Chamber Litigation Center, an agency of the U.S. Chamber of Commerce, told The New York Times. The center filed several friend of the court briefs supporting Walmart at the Supreme Court.
The implication is that Walmart, headquartered in Bentonville, Ark., and one of the world’s largest corporations, is just too big to be the target of a class action.
The company tried to emphasize the massive nature of the class in its petition to the Supreme Court asking for review.
“This nationwide class includes every woman employed for any period of time over the past decade, in any of Walmart’s approximately 3,400 separately managed stores, 41 regions and 400 districts, and who held positions in any of approximately 53 departments and 170 different job classifications,” the company’s petition said. “The millions of class members collectively seek billions of dollars in monetary relief under Title VII of the Civil Rights Act of 1964, claiming that tens of thousands of Walmart managers inflicted monetary injury on each and every individual class member in the same manner by intentionally discriminating against them because of their sex, in violation of the company’s express anti-discrimination policy.”
The Supreme Court review does not involve the merits of the suit — whether Walmart is guilty of discrimination against women — but whether the enormous class action, driven by statistics, should be allowed to proceed or whether the women must sue individually or in small groups.
The case started in 2001 in San Francisco when six women filed suit claiming Walmart discrimination, in part because they were passed over for promotion in favor of men. One of the six says she was told, “It’s a man’s world.”
Washington attorney Joseph Sellers, who argued for the women before the Supreme Court last week, told United Press International last year, “There’s a substantial body of evidence that comes from Walmart’s own workforce data,” including “very sophisticated analysis” to show what company policy was. Despite the size of the class, Walmart can use that evidence in an attempt to show that there was no company-wide discrimination, just as plaintiffs can use the same evidence to show there was, he said.
“We have evidence that there is a culture at the company that condones or says women are second-class citizens,” Sellers said, some of it surfacing at managers’ meetings at strip clubs or at Hooters restaurants.
Sellers had to think fast on his feet last Tuesday — ironically during Women’s History Month — as justice after justice tried to shred his argument from the bench.
Four of the court’s five-member conservative majority — Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia and Samuel Alito — were expected to give Sellers a tough time, with Justice Clarence Thomas asking no questions, as is his custom.
The four-member liberal bloc was expected to give him help. The female members of the court, Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan did their best to steer the argument in favor of the class action. Ginsburg argued the concept of gender discrimination into law in a series of brilliant cases in the 1970s.
But the fourth member of the bloc, Justice Stephen Breyer, barely spoke Tuesday, and kept his cards close to his vest.
The time allotted for Walmart’s lawyer, Los Angeles attorney Theodore Boutrous Jr., was relatively calm except for pointed questions from the women, but Sellers got a grilling.
Roberts was the first to strike, asking Sellers, “Is it true that Walmart’s pay disparity across the company was less than the national average” for similar retailers?
“I don’t know that that’s a fair comparison,” Sellers replied, adding Walmart was making that comparison “with the general population, not with people in retail.”
Kennedy was more acerbic. “It’s not clear to me: What is the unlawful policy that Walmart has adopted,” he asked Sellers, “under your theory of the case?”
“Justice Kennedy, our theory is that Walmart provided to its managers unchecked discretion,” Sellers said, with women getting fewer opportunities and less pay even with more seniority and higher performance reviews.
“Your complaint faces in two directions,” Kennedy said from the bench. “No. 1, you said this is a culture where … the headquarters knows everything that’s going on. Then in the next breath, you say, well, now these supervisors have too much discretion. It seems to me there’s an inconsistency there, and I’m just not sure what the (alleged) unlawful policy is.”
“There is no inconsistency any more than it’s inconsistent within Walmart’s own personnel procedures,” Sellers replied. A federal judge “found specific features of the pay and promotion process that are totally discretionary. There’s no guidance whatsoever about how to make those decisions. … But the company also has a very strong corporate culture … what they call the ‘Walmart way,’ and the purpose of that is to ensure that in these various stores that, contrary to what Walmart argues, that these are wholly independent facilities, that the decisions of the managers will be informed by the values the company provides to these managers in training.”
“Well, is that disparate treatment?,” Kennedy asked. “Disparate” or unequal treatment is a necessary element for discrimination.
“It is disparate treatment,” Sellers insisted. “It is a form of disparate treatment because they are making these decisions because of sex.”
Scalia echoed Kennedy.
“I’m getting whipsawed here,” he said. “On the one hand, you say the problem is that (local managers) were utterly subjective, and on the other hand you say there is … a strong corporate culture that guides all of this. Well, which is it? It’s either the individual supervisors are left on their own, or else there is a strong corporate culture that tells them what to do.”
Sellers replied that managers have broad discretion, but don’t make their decisions in a vacuum.
Scalia kept charging ahead.
“What do you know about … the unchallenged fact that the central company had a policy, an announced policy, against sex discrimination,” he asked, “so that it wasn’t totally subjective at the managerial level? It was, ‘You make these hiring decisions, but you do not make them on the basis of sex.’ Wasn’t that the central policy of the company?”
“That was a written policy,” Sellers said. “That was not the policy that was effectively communicated to the managers.”
Post-mortem evaluations of the argument were almost uniformly pessimistic for the class’s survival.
Lyle Denniston, dean emeritus of the Supreme Court press corps, wrote on SCOTUSBLOG.com that it took only a few minutes of argument “for a potentially fatal flaw … to stand out boldly.”
The basic claim in the suit is that Walmart maintains a common culture — “the Walmart Way” — to ensure uniformity in its 3,400 stores, Denniston wrote, but the corporate headquarters gives local store managers unlimited discretion to decide pay and promotions — resulting in lower pay and fewer promotions for women.
Kennedy’s point was those factors may seem contradictory.
But for a class action to survive under the Federal Rules of Civil Procedure, “the legal and factual issues must share commonality” at a minimum, Denniston wrote. Much of last week’s argument focused on that key requirement.
In the Los Angeles Times, an article partly written by veteran Supreme Court correspondent David Savage said the statistics may support the women. Lawyers say two-thirds of Walmart’s employees were women though men made up 86 percent of store managers when the stats were gathered five years ago.
But the article said “the tenor of Tuesday’s argument suggested that the massive, decade-old suit may run aground before it can move toward a trial.”
The Times said even though the male conservative justices were more aggressively negative, all of the justices expressed at least some reservations.
The justices should rule before the summer recess.
Bottom line from UPI: Justices could certainly change their minds, but based on their behavior during argument, look for the class to be struck down by at least a 5-4 vote, and a larger margin, 6-3 or 7-2 or more, is certainly within the realm of possibility.
By: Michael Kirkland, UPI.com, April 3, 2011
“An Inherent Relationship”: A Primer on Class Struggle
When we study Marx in my graduate social theory course, it never fails that at least one student will say (approximately), “Class struggle didn’t escalate in the way Marx expected. In modern capitalist societies class struggle has disappeared. So isn’t it clear that Marx was wrong and his ideas are of little value today?”
I respond by challenging the premise that class struggle has disappeared. On the contrary, I say that class struggle is going on all the time in every major institution of society. One just has to learn how to recognize it.
One needn’t embrace the labor theory of value to understand that employers try to increase profits by keeping wages down and getting as much work as possible out of their employees. As the saying goes, every successful capitalist knows what a Marxist knows; they just apply the knowledge differently.
Workers’ desire for better pay and benefits, safe working conditions, and control over their own time puts them at odds with employers. Class struggle in this sense hasn’t gone away. In fact, it’s inherent in the relationship between capitalist employer and employee. What varies is how aggressively and overtly each side fights for its interests.
Where else does class struggle occur? We can find class struggle wherever three things are at stake: the balance of power between capitalists and workers, the legitimacy of capitalism, and profits.
The most important arena outside the workplace is government, because it’s here that the rules of the game are made, interpreted, and enforced. When we look at how capitalists try to use government to protect and advance their interests — and at how other groups resist — we are looking at class struggle.
Capitalists want laws that weaken and cheapen labor. This means laws that make it harder for workers to organize unions; laws that make it easier to export production to other countries; laws that make it easier to import workers from other countries; laws and fiscal policies that keep unemployment high, so that workers will feel lucky just to have jobs, even with low pay and poor benefits.
Capitalists want tax codes that allow them to pay as little tax as possible; laws that allow them to externalize the costs of production (e.g., the health damage caused by pollution); laws that allow them to swallow competitors and grow huge and more powerful; and laws that allow them to use their wealth to dominate the political process. Workers, when guided by their economic interests, generally want the opposite.
I should note that by “workers,” I mean everyone who earns a wage or a salary and does not derive wealth from controlling the labor of others. By this definition, most of us are workers, though some are more privileged than others. This definition also implies that whenever we resist the creation and enforcement of laws that give capitalists more power to exploit people and the environment, we are engaged in class struggle, whether we call it that or not.
There are many other things capitalists want from government. They want public subsidy of the infrastructure on which profitability depends; they want wealth transferred to them via military spending; they want militarily-enforced access to foreign markets, raw materials, and labor; and they want suppression of dissent when it becomes economically disruptive. So we can include popular resistance to corporate welfare, military spending, imperialist wars, and government authoritarianism as further instances of class struggle.
Class struggle goes on in other realms. In goes on in K-12 education, for example, when business tries to influence what students are taught about everything from nutrition to the virtues of free enterprise; when U.S. labor history is excluded from the required curriculum; and when teachers’ unions are blamed for problems of student achievement that are in fact consequences of the maldistribution of income and wealth in U.S. society.
It goes on in higher education when corporations lavish funds on commercially viable research; when capitalist-backed pundits attack professors for teaching students to think critically about capitalism; and when they give money in exchange for putting their names on buildings and schools. Class struggle also goes on in higher education when pro-capitalist business schools are exempted from criticism for being ideological and free-market economists are lauded as objective scientists.
In media discourse, class struggle goes on when we’re told that the criminal behavior of capitalist firms is a bad-apple problem rather than a rotten-barrel problem. It goes on when we’re told that the economy is improving when wages are stagnant, unemployment is high, and jobs continue to be moved overseas. It goes on when we’re told that U.S. wars and occupations are motivated by humanitarian rather than economic and geopolitical concerns.
Class struggle goes on in the cultural realm when books, films, and songs vaunt the myth that economic inequality is a result of natural differences in talent and motivation. It goes on when books, films, and songs celebrate militarism and violence. It also goes on when writers, filmmakers, songwriters, and other artists challenge these myths and celebrations.
It goes on, too, in the realm of religion. When economic exploitation is justified as divinely ordained, when the oppressed are appeased by promises of justice in an afterlife, and when human capacities for rational thought are stunted by superstition, capitalism is reinforced. Class struggle is also evident when religious teachings are used, antithetically to capitalism, to affirm values of equality, compassion, and cooperation.
I began with the claim that Marx’s contemporary relevance becomes clear once one learns to see the pervasiveness of class struggle. But apart from courses in social theory, reading Marx is optional. In the real world, the important thing is learning to see the myriad ways that capitalists try to advance their interests at the expense of everyone else. This doesn’t mean that everything in social life can be reduced to class struggle, but that everything in social life should be examined to see if and how it involves a playing-out of class interests.
There is fierce resistance to thinking along these lines, precisely because class analysis threatens to unite the great majority of working people who are otherwise divided in a fight over crumbs. Class analysis also threatens to break down the nationalism upon which capitalists depend to raise armies to help exploit the people and resources of other countries. Even unions, supposed agents of workers, often resist class analysis because it exposes the limits of accommodationism.
Resistance to thinking about class struggle is powerful, but the power of class analysis is hard to resist, once one grasps it. Suddenly, seemingly odd or unrelated capitalist stratagems begin to make sense. To take a current example, why would capitalists bankroll candidates and politicians to destroy public sector unions? Why do capitalists care so much about the public sector?
It’s not because they want to balance budgets, create jobs, improve government efficiency, or achieve any of the goals publicly touted by governors like Scott Walker, Chris Christie, Rick Snyder, or John Kasich. It’s because of the profit and power they can gain by destroying the last remaining organizations that fight for the interests of working people in the political sphere, and by making sure that private-sector workers can’t look to the public sector for examples of how to win better pay and benefits.
Other parts of the agenda being pursued by corporate-backed governors and other elected officials also make sense as elements of class struggle.
Selling off utilities, forests, and roads is not about saving taxpayers money. It’s about giving capitalists control of these assets so they can be used to generate profits. Cutting social services is about ensuring that workers depend on low-wage jobs for survival. Capitalists’ goal, as always, is a greater share of wealth for them and a smaller share for the rest of us. Clear away the befogging rhetoric, the rhetoric that masks class struggle, and it becomes clear that the bottom line is the bottom line.
If class struggle is hard to see, it’s not only because of mystifying ideology. It’s because the struggle has been a rout for the last thirty years. But a more visible class struggle could be at hand. The side that’s been losing has begun to fight back more aggressively, as we’ve seen most notably in Wisconsin. To see what’s at stake in this fight and what a real victory might look like, it will help to call the fight by its proper name.
By: Michael Schwalbe, Professor of Sociology, North Carolina State University, Originally Published March 31, 2011, CommonDreams.org
Mad Men and Mad Women: Republicans And Social Engineering
Republicans hate social engineering, unless they’re doing it.
Wishing they had the power to repeal the repeal of “don’t ask, don’t tell” and get back to the repressed “Mad Men” world they crave, some conservative lawmakers grumpily quizzed upbeat military brass on Friday.
“We’re starting to try to conform the military to a behavior, and I remember going through the military, we took behaviors and we formed it to the military,” said Representative Allen West of Florida, warning ominously (and weirdly) that “this could be the camel getting his nose under the tent.”
The House Armed Services subcommittee hearing was led by Joe Wilson, the oh-so-subtle Republican congressman from South Carolina famous for yelling “You lie!” at President Obama. Wilson started off the hearing by saying that the legislation to let gays stop lying while they risk dying was rushed through in an “undemocratic” lame-duck session.
Two top Pentagon officials testified that the transition was going swimmingly, yet Republicans scoffed. Representative Austin Scott of Georgia demanded the price tag. Clifford Stanley, an under secretary of defense, replied that the training materials cost only $10,000.
Scott harrumphed, “If something was done at D.O.D. for $10,000, I would like to know what it was.” He said that hundreds of thousands had been spent training a soldier in his district to disarm I.E.D.’s, but the soldier wouldn’t re-enlist because of the “social policy.”
The Democrat Chellie Pingree of Maine jumped in to note that the cost of purging gays between 2004 and 2009 was $193.3 million: “It’s not only unconscionable … but the costs are horrendous.”
Scott persisted in looking for trouble, even after Vice Adm. William Gortney, director of the joint staff, said the Pentagon had seen no problems so far.
The congressman asked the admiral if he had ever dismissed anyone. Gortney said he had dismissed a young sailor who acknowledged being gay after “don’t ask, don’t tell” first passed.
“Did you discharge him from the service because he was gay?” Scott asked. “Or because he violated the standard of conduct?”
“Because he was gay,” Gortney said.
“He did not violate the standard of conduct before he was dismissed?” Scott pressed.
“He did not,” Gortney said.
“Well,” Scott said, once more at a loss, “that’s not the answer I thought you would give, to be honest with you.”
Gortney assured him there were “very few cases” of gays’ being dismissed for violating the standard of conduct.
After the Republican rout in November, the story line took hold that because of the recession and Tea Partiers’ fervent focus on the debt as a moral matter, divisive social issues were going on the back burner. But lo and behold, social issues have roared back. Many in the Tea Party have joined that chain-smoking, cocktail-quaffing Mad Man John Boehner in the martini party to put a retro focus on wedge issues, from gays to abortion.
Like Boehner, who complained that Democratic leaders were “snuffing out the America that I grew up in,” some Tea Partiers are jumping in a time machine. They can’t stop themselves from linking social issues to the budget.
“This pulls the mask back a little bit on the Tea Party movement,” said Representative Chris Van Hollen, a Democrat from Maryland. “Adding riders against Planned Parenthood and gutting the environmental laws indicate that the Tea Party is focused on imposing a right-wing ideological agenda on the country and using the budget as a vehicle.”
Whether it’s upholding the Defense of Marriage Act, trying to defund Planned Parenthood, or aiming cuts at the Environmental Protection Agency, the National Endowment for the Arts, NPR and even AARP, House Republicans are in a lather that occludes their pledges to monomaniacally work on the economy.
When Mitch Daniels, the Indiana governor and Republican presidential aspirant, dared to urge his party to “mute” social issues, he was smacked.
“We cannot repair the economy without addressing the deep cultural issues that are tearing apart the family and society,” said Andy Blom of the American Principles Project. The presidential hopeful Rick Santorum even posited last week that abortions might be breaking the bank on Social Security.
The snowball of social rage will speed up as we head toward 2012, given that the Iowa caucuses are dominated by social conservatives. Pawlenty, Barbour and Huckabee have already talked about vitiating the repeal of “don’t ask, don’t tell.”
Because independent voters considered President Obama too partisan in his debut, they shifted their loyalties — and swept in one of the most ideological and partisan Republican caucuses in history. Now Obama will get back some of the independents because he seems reasonable by comparison.
One thing independents like to be independent of is government meddling in their personal lives.
By: Maureen Dowd, Op-Ed Columnist, The New York Times, April 2, 2011
Republican Policies Don’t Care About Poor People
I’m not saying that congressional Republicans don’t care about poor people. But they really care about rich people. So far, the policy agenda they’ve pushed has been a mixture of very expensive tax cuts for the very wealthy and very deep cuts to a lot of programs that focus on the very poor. It’s . . . curious.
Think back to the tax deal. The GOP’s demands were: 1) the extension of the Bush tax cuts for high-earners; and 2) a massive cut in the estate tax. Put together, the two items will increase the deficit by close to a trillion dollars over 10 years. If the GOP had wanted, they could’ve used that money for more tax cuts for the poor, or even the middle class. The Obama administration would’ve happily signed onto that compromise. But Republicans did not want that. If we were going to increase the deficit, we were going to do it on behalf of the wealthy.
Now they’ve moved onto deficit reduction, or at least spending cuts, and their priorities in the 2011 budget are telling. Their cuts are coming from non-defense discretionary spending. That’s a category of spending, as you can see here, that tends to focus on services to the poor, the jobless and children. Among other cuts, they’ve proposed slicing more than $1 billion off Head Start, $1.1 billion off the Public Housing Capital Fund, $752 million from the Special Supplemental Nutrition Program for Women, Infants and Children, or WIC, and $5.7 billion from Pell Grants. I could, of course, go on. Democrats have tried to widen the cuts out to other categories so their impact falls less heavily on the disadvantaged, but so far, Republicans have refused. If we’re going to cut spending, we’re going to do it on the backs of the poor.
As for the 2012 budget, we know Social Security is being left alone, and we know Medicaid — which is to say, health care for poor people — is taking a $1 trillion cut. If we’re going to reform entitlements, it seems, we’re going to start with the one that serves the poor.
It’s very difficult to argue that these programs are the most wasteful in the federal government. The Pentagon is burning through a lot more cash than Head Start. Medicare spends much more for health services than Medicaid. The mortgage-interest tax deduction is regressive, as is the deduction for employer-based health care, but as of yet, Republicans haven’t proposed reforming either. Again, I’m not saying Republicans don’t care about poor people. But so far, their policy proposals don’t. And you can’t chalk it up to an appetite for sacrifice, because for all that the GOP is asking from the poor, they’ve fought hard to protect the rich from having to make any sacrifices. So far, it’s been program cuts for the poor and tax cuts for the rich. It’s a disappointing set of priorities.
By: Ezra Klein, The Washington Post, April 1, 2011
‘Government Shutdown Prevention Act’ Undermines Democracy
Legal training is not a requirement to serve in Congress, although many of the members are, and have been, lawyers. Nor is it necessary for a House or Senate member to have served in another government post, although many have, and their experience at forging alliances and compromises has been helpful. We no longer have literacy tests for voters, a technique southern states used until the 1960s, effectively to disenfranchise African-American voters.
Yet, it might not be a bad idea to require incoming members of Congress to take a basic test in civics.
How else, other than an alarming misunderstanding of the basic of American government, to explain the effort of House Republicans to shut the Senate out of the budget process? Their sanctimoniously titled “Government Shutdown Prevention Act” would do just that, deeming that if the Senate failed to pass a measure to keep the government running amid the current budget dispute, that the House-passed version would become law.
The idea is bizarre on so many levels—not least because the Senate would actually have to pass the Government Shutdown Prevention Act for the House to assume a dictatorial role in one of the three branches of the world’s greatest democracy. The current fashion of anti-intellectualism in politics aside, do the House Republicans not understand the elementary-school fundamentals of how a bill becomes a law.
The freshman GOP lawmakers are annoyed with the Democratic-controlled Senate, this time for failing to cave in on the dramatic cuts the House Republicans want in the budget. Join the club, folks: The House has long been irritated by the Senate. Ask the House Democrats, who approved more than 300 bills in the last Congress that ended up dying in a Senate that failed to pass them or even consider them.
But the rudimentary lesson of lawmaking (FYI—a bill has to be passed by both the House and the Senate, then signed by the president, to become law. If the president vetoes a bill, each chamber of Congress must summon a two-thirds majority to override the veto) are nowhere near as important as the lesson about getting things done in a country of diverse interests. The Tea Party crowd ran campaigns of anger and frustration, blaming Congress for its failure to get balanced budgets and myriad other things. There’s a reason for that, and it’s not because members are stupid (they’re not, and some of them are absolutely brilliant) or lazy (they work longer hours than most Americans imagine) or weak. It’s because this is a country of wildly divergent attitudes and perspectives, reflected in the lawmakers those citizens send to Congress. The Tea Partyers believe they were sent to Washington with a mission, and they likely were. So were Nancy Pelosi and other liberal members whose constituents have drastically different perspectives than those in the Tea Party team’s districts. And their views are no less valid.
Legislating requires compromise, and compromise is hard, especially during times of economic stress. Being a congressman is a difficult job, forcing them to balance their districts’ needs with the national interest. The new members signed up for this job. They should do it.
By: Susan Milligan, U.S. News and World Report, April 1, 2011
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