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
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
GOP Wants To Pay For Health Care After All
Well, well, well.
Remember how Republicans have been whining that using federal tax dollars to pay for health care is some kind of evil Hitlerian Kenyan socialism that has all our Founding Fathers spinning in their graves? Turns out it’s bullshit.
Kate Sheppard at Mother Jones reports:
A bill that Rep. Cliff Stearns (R-Fla.) introduced in January would provide federal funds for the purchase of sonogram machines at organizations that counsel women against having an abortion (the American Independent reported on this bill last week). These crisis pregnancy outfits, sometimes called “pregnancy resource centers,” are often run by religious groups; many have been found to provide women with false and misleading information to dissuade them from having an abortion.
The bill, H.R. 165, laughably called the Informed Choice Act, appears quite simple:
To authorize the Secretary of Health and Human Services to make grants to nonprofit tax-exempt organizations for the purchase of ultrasound equipment to provide free examinations to pregnant women needing such services, and for other purposes.
But of course it doesn’t allow all organizations to apply for funding. There are a few restrictions, according to Mother Jones.
To be eligible for this grant, a facility would have to show every woman seeking services the ultrasound image and describe to them the “general anatomical and physiological description of the characteristics of the fetus.” The facility would be required to provide women with “alternatives to abortion such as childbirth and adoption and information concerning public and private agencies that will assist in those alternatives.” It also must offer its services free of charge. That last condition would disqualify abortion providers, such as Planned Parenthood, which charges on a sliding scale based on a woman’s income.
Crisis pregnancy centers are nothing more than religious centers that try to dissuade women from obtaining abortions by using false and misleading information.To review:
Such centers have repeatedly been found to give women false medical information for the explicit purpose of preventing them from obtaining, or even learning about, abortions.A 2006 Congressional report, False and Misleading Health Information Provided by Federally Funded Pregnancy Resource Centers, concluded:
Pregnant teenagers and women turn to federally funded pregnancy resource centers for advice and counseling at a difficult time in their lives. These centers, however, frequently fail to provide medically accurate information. The vast majority of pregnancy centers contacted in this investigation misrepresented the medical consequences of abortion, often grossly exaggerating the risks. This tactic may be effective in frightening pregnant teenagers and women and discouraging abortion. But it denies the teenagers and women vital health information, prevents them from making an informed decision, and is not an accepted public health practice.
The bill’s sponsor is the same Cliff Stearns who wanted to investigate Planned Parenthood over the O’Keefe-style sting videos that tried to show Planned Parenthood covering up a prostitution ring. That would be the same Cliff Stearns who last month said that “defunding Planned Parenthood should be a fiscal and moral priority for Congress, and for the American people.” Why?
Our national debt exceeds $14 trillion and after running a federal deficit of $1.3 trillion last year, we will see a $1.5 trillion deficit this year. I get one clear message in talking with the American people – promote job growth and control government spending.The federal government funds thousands of programs and projects, and Congress must look at all federal expenditures and reduce or eliminate those that do not meet the needs of the American people.
So while Rep. Stearns and his fellow Republicans think there’s just no room in our budget for the nation’s largest women’s reproductive health care provider, there is, apparently, $5 million a year to fund fake health care clinics run by religious zealots.
No word yet from Stearns on how this will “promote job growth and control government spending.”
By: Kaili Joy Gray, Daily Kos, March 29, 2011
Congressional Budget Proposals And Why We’re Fasting
I stopped eating on Monday and joined around 4,000 other people in a fast to call attention to Congressional budget proposals that would make huge cuts in programs for the poor and hungry.
By doing so, I surprised myself; after all, I eat for a living. But the decision was easy after I spoke last week with David Beckmann, a reverend who is this year’s World Food Prize laureate. Our conversation turned, as so many about food do these days, to the poor.
Who are — once again — under attack, this time in the House budget bill, H.R. 1. The budget proposes cuts in the WIC program (which supports women, infants and children), in international food and health aid (18 million people would be immediately cut off from a much-needed food stream, and 4 million would lose access to malaria medicine) and in programs that aid farmers in underdeveloped countries. Food stamps are also being attacked, in the twisted “Welfare Reform 2011” bill. (There are other egregious maneuvers in H.R. 1, but I’m sticking to those related to food.)
These supposedly deficit-reducing cuts — they’d barely make a dent — will quite literally cause more people to starve to death, go to bed hungry or live more miserably than are doing so now. And: The bill would increase defense spending.
Beckmann, who is president of Bread for the World, made me want to join in just by talking about his commitment. For me, the fast is a way to demonstrate my interest in this fight, as well as a way to remind myself and others that there are bigger things in life than dinner. (Shocking, I know.) I expect I’ll learn something about patience and fortitude while I’m at it. Thirty-six hours into the fast, my senses are heightened and everything feels a bit strange. Odors from the cafeteria a floor away drift down to my desk. In the elevator, I can smell a muffin; on the street, I can smell everything — good and bad. But as hungry as I may get, we know I’ll eat well soon. (Please check my blog for a progress report.)
Many poor people don’t have that option, and Beckmann and his co-organizers are calling for God to create a “circle of protection” around them. Some are fasting for a day, many for longer. (I’m fasting until Friday, and Beckmann until Monday. And, no, it’s not too late to join us.)
When I reminded Beckmann that poor people’s hunger was hardly a new phenomenon, and that God hasn’t made a confirmed appearance recently — at least that I know of — he suggested I read Isaiah 58, in which God says that if we were more generous while we fasted he’d treat us better. Maybe. But a billion people are just as hungry, human, and as deserving now as the Israelites were when they were fleeing Egypt, and I don’t see any manna.
This isn’t about skepticism, however; it’s about ironies and outrages. In 2010, corporate profits grew at their fastest rate since 1950, and we set records in the number of Americans on food stamps. The richest 400 Americans have more wealth than half of all American households combined, the effective tax rate on the nation’s richest people has fallen by about half in the last 20 years, and General Electric paid zero dollars in U.S. taxes on profits of more than $14 billion. Meanwhile, roughly 45 million Americans spend a third of their posttax income on food — and still run out monthly — and one in four kids goes to bed hungry at least some of the time.
It’s those people whom Beckmann and his allies (more than 30 organizations are on board) are trying to protect. The coalition may be a bit too quick to support deficit reduction, essentially saying, “We understand the need for fiscal responsibility, but we don’t want to sacrifice the powerless, nearly voiceless poor in its name. As Beckmann knows, however, deficit reduction isn’t as important as keeping people from starving: “We shouldn’t be reducing our meager efforts for poor people in order to reduce the deficit,” he told me by phone. “They didn’t get us into this, and starving them isn’t going to get us out of it.”
This is a moral issue; the budget is a moral document. We can take care of the deficit and rebuild our infrastructure and strengthen our safety net by reducing military spending and eliminating corporate subsidies and tax loopholes for the rich. Or we can sink further into debt and amoral individualism by demonizing and starving the poor. Which side are you on?
If faith increases your motivation, that’s great, but I doubt God will intervene here. Instead, we need to gather and insist that our collective resources be used for our collective welfare, not for the wealthiest thousand or even million Americans but for a vast majority of us in the United States and, indeed, for citizens of the world who have difficulty making ends meet. Or feeding their kids.
Though Beckmann is too kind to say it, he and many other religious leaders believe that true worship can’t take place without joining this struggle: “You can’t have real religion,” he told me, “unless you work for justice for hungry and poor people.”
I don’t think you can have much humanity, either.
By: Mark Bittman, The New York Times Opinion Page, March 29, 2011
What’s Really Driving The GOP’s Abortion War
The economy is reeling and we’re in three wars, but Republicans across the country are focused on…abortion?
When Republicans profited from the miserable economy to sweep up huge wins in last fall’s election, most political watchers figured they knew what was coming: budget cuts, privatization of more government functions, and tax cuts for the wealthy. The push to dismantle public sector unions has been a bit of a surprise, but not a jarring one.
But what seems to have thrown everyone — save for a handful of embittered and neglected pro-choice activists — for a loop is the way Republican lawmakers at both the national and state levels have focused so intently on the uteruses of America. Republicans appear to believe that the women of America have wildly mismanaged these uteruses in the four decades since the Supreme Court gave them control over them — and now that Republicans have even a little bit of power, they’re going to bring this reign of female tyranny over uteruses to an end.
After all, the Republican House speaker, John Boehner, has identified limiting women’s access to abortion and contraception as a “top priority” — this with the economy is in tatters and the world in turmoil. Boehner’s and the GOP’s abortion fixation raises an obvious question: Why now, when there are so many other pressing issues at stake?
There isn’t just one explanation. The assault on reproductive rights is intensifying now because of a convergence of several otherwise unrelated events that have created the perfect moment for the anti-choice movement to go for the kill.
Republicans have managed to score a couple of major victories against women’s rights in the past few years. Both of the main obstacles to dismantling reproductive rights — the Supreme Court and the Democrats — have buckled under anti-choice pressure, emboldening the movement to demand even more, including rollbacks on contraception access.
In 2007, the Supreme Court, with a 5-4 vote, upheld the Partial Birth Abortion Act, which not only set a precedent of the court validating a ban on an abortion procedure necessary to preserve some women’s lives, but also introduced a new justification to limit women’s rights. Justice Anthony Kennedy argued in the majority opinion that the D&X procedure could be banned in order to save women from the possibility of regret down the road. After this ruling, anti-choice bills sprung up like weeds, many of them rooted in this same assumption that women are too silly to be trusted to make their own decisions. Waiting periods, ultrasound requirements and forced “counseling” all make accessing abortion that much harder — even as each step is dressed up as protection for women against their own flightiness and inability to make good decisions.
But the bigger victory was getting a Democratic president to sign an executive order barring insurance companies from offering abortion coverage to customers who are using federal subsidies to pay for insurance. Barack Obama signed the order under duress; there was no way to pass his healthcare reform bill without doing so. But the lesson for Republicans was clear: When it comes to reproductive rights, they don’t actually need to be in charge to get their way. If reproductive rights can be exploited to nearly derail healthcare reform while the Democrats control Congress and the presidency, think of how much leverage the issue gives them now that they’ve gained control of the U.S. House and a bunch of new statehouses.
It’s hard to overstate how much Republican energy is invested in bringing the uteruses of America under right-wing control. The House went into an anti-choice frenzy upon being sworn in in January, passing two bills that would eliminate private insurance funding for abortion, one that would dramatically cut funding for international family planning, and the Pence Amendment, which would ban Planned Parenthood from receiving any federal funding. And in case the Pence Amendment doesn’t work, the House also zeroed out all funding for Title X, which subsidizes reproductive healthcare for low-income patients, in the continuing resolution that funds the federal budget.
For the right, rolling back reproductive rights is considered a worthy goal in its own right, but since the issue could also provoke a budget showdown that could result in a government shutdown, it’s also a useful tool in their effort to force Democrats to blink. As with their push to bust unions at the state level, Republicans stand to gain electorally by wreaking havoc on the pro-choice movement and undermining its ability to get out the vote for Democrats.
On the state level, an unprecedented number of anti-choice bills are being introduced in response to the perceived anti-choice bent of the Supreme Court. Florida alone has introduced 18 separate anti-choice bills. Gov. Rick Perry of Texas has declared mandatory ultrasounds for abortion patients an emergency priority, and fast-tracked it through the Legislature. Three separate states have introduced bills that could legalize domestic terrorism against abortion providers, though a bill in South Dakota was withdrawn under pressure. Instead, that state’s Legislature moved on to pass the most draconian abortion law in the country, one that would require a woman to wait 72 hours for an abortion and listen to a lecture from an anti-choice activist before having an abortion. These examples represent just a tiny fraction of the anti-choice bills percolating through state legislatures.
Maybe this is all surprising. After all, haven’t we heard for the last two years that the Tea Party is more libertarian and less socially conservative? If you bought that line, congratulations — you’re ensconced in Beltway wisdom. The truth is that a new name for the same old conservative base hasn’t changed the nature of that base. Just as before, the “small government” conservatives and the religious right have a great deal of overlap. With gay rights waning as a powerful wedge issue, keeping the religious right motivated and ready to vote is harder than ever. Reproductive rights creates new incentives for church-organized activists to keep praying, marching, donating and, most important, voting for the GOP.
By: Amanda Marcotte, Salon War Room, March 27, 2011
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