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
The Rich Are Different: They’re Luckier
This long attack on the unfairness of progressive taxation from the Hoover Institution by Kip Hagopian usefully embodies a lot of right-wing delusions about income inequality. It argues that a person’s income is determined by three things:
America’s free enterprise system provides an environment in which the substantial majority of its citizens can realize their fullest earnings potential. Within that environment, individual economic outcomes are the product of a combination of three elements: aptitude, work effort, and choice of occupation.
Aptitude. For the purposes of this essay, aptitude is broadly defined as the capacity to produce, or to earn income. For the most part, it comes from circumstances of birth and is distributed unequally. Aptitude may be derived from innate talents (cognitive, musical, artistic, athletic, etc.) or physical attributes (appearance, dexterity, possession of senses, etc.). Or it may be acquired from lessons learned from parents and other life experiences. Aptitude emanating from circumstances of birth (either innate or acquired) can be significantly enhanced by individual effort applied to strengthening one’s skills (see “Work Effort” below). Aptitude is measured from low to high in accordance with the monetary value placed on it in the marketplace. This is a measure of earning power and is not in any way an indication of an individual’s intrinsic worth as a human being. For most people aptitude is the most significant determinant of income. But it has to be understood as capacity; aptitude does not produce income until it is combined with individual effort.
Work effort. For any given level of aptitude and occupation, work effort plays the decisive role in determining income, and in many cases may result in persons with lower aptitudes earning more than their higher-aptitude peers. For the purposes of this essay, the term “work effort” includes not only the number of hours worked, but also the intensity of the effort applied during those hours. As noted above, it also includes work effort applied to strengthening one’s skills.
At every level of aptitude and in every profession, whether the pay is in salary or hourly wages, there are workers who outperform their peers in each hour worked. They do this by performing tasks more quickly; focusing on the tasks more intently; finding and completing additional tasks that need to be done; and using some of their leisure time practicing or training to become more skilled. These people get more raises, larger bonuses, and more promotions than their peers. Thus, greater work effort can produce higher income whether the person is paid by the hour or earns a salary.
In addition to producing higher income in its own right, work effort applied to strengthening one’s skill — resulting in “learned” or “enhanced” aptitude — can make a substantial contribution toward increasing income. The “rough” carpenter who spends nights and weekends developing the skills necessary to qualify as a more highly valued “finish” carpenter will move up the wage scale by doing so. Professional athletes, musicians, singers, and other performers can enhance their innate aptitudes substantially through extensive practice, and a great many are renowned for having done so. A classic example is Hall-of-Famer Jerry Rice, who is generally recognized as the best wide receiver in NFL history. He was one of the highest paid players in pro football for twenty years, an achievement largely credited to his intense practice and workout regimen. Perhaps the most effective way of enhancing aptitude is through increased study in school. Whether it is grade school, high school, vocational school or college, for any particular tier of aptitude, those who study the most almost always get the best grades, matriculate to the best colleges, and secure the best jobs.
Choice of occupation. Choice of occupation is also important in determining income. Had Bill Gates decided to finish Harvard and become a high school math teacher, he almost certainly would have been successful, but he would not have become a multi-billionaire.
Earned income is determined by a mix of the three factors described above, and the relative contribution of each varies by individual.
This is obviously written to minimize the role of luck. It acknowledges that Bill Gates made more money by choosing to become a software mogul than by choosing t be a high school math teacher. But, of course, Gates (as he has acknowledged) benefited enormously not just from his family situation but from the timing of his birth, which put him in the work force at a moment when computing technology was set to explode. If he had been born a decade or two earlier, he probably would have been an anonymous lab geek if he had followed his mathematical inclinations, or perhaps the owner of a successful grocery store chain if he had pursued his entrepreneurial instincts.
What’s more, it is demonstrably not the case that income levels simply reflect aptitude and effort. Now, obviously being from a richer family affords all sorts of advantages, including physical, emotional, and cultural development. But factor all that out of the equation and assume that it’s just fair for all those things to translate into higher academic performance and higher earnings.
Even assuming that, there are massive advantages inherent simply in being born rich (and disadvantages in being poor.) My favorite example, simply because it’s so dramatic, is that a child born into the lowest-earning quintile who manages to attain a college degree is less likely to be in the highest-earning quintile than a child born into the top quintile who does not attain a college degree. This is all the more remarkable when you consider that making it to, and through, college is far harder for poor kids than rich kids even at a given level of aptitude. (Two thirds of the kids with average math scores and low-income parents do not attend college, while almost two-thirds of high-income kids with average math scores do.)
How would Hagopian explain this? The lower-income kids managed to beat the odds by graduating from college, yet they make less money than the rich kids who beat the odds in the other direction by not going to college. By any measure, the former group has more aptitude and greater work ethic. Now, clearly right-wingers in general, and wealthy right-wingers in particular, like to think aptitude and effort and choices determine how much money you make. (Hagopian is the co-founder of a venture capital and private equity firm.) You see this from Greg Mankiw, Arthur Brooks, and on and on. The right-wing worldview is based on a moral premise about the relationship between merit and wealth that is demonstrably false.
By: Jonathan Chait, The New Republic, April 1, 2011
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