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
Is Birther Donald Trump A Democratic Sleeper Agent?
I’m becoming concerned that a certain political figure in the 2012 presidential field has a sinister, hidden agenda. We all like to laugh and be dismissive–but it’s increasingly hard to ignore the questions about his birth certificate. One has to ask: Is Donald Trump, seemingly a “birther” running for the GOP presidential nod, really an Obama sleeper agent?
Trump has been ratcheting up his embrace of birtherism–the spurious accusation that President Obama was born outside of the United States but has cleverly covered it up, in part by inducing the state of Hawaii to produce a fake birth certificate testifying to his U.S. origin. Trump upped the birther ante Monday morning on Fox News Channel:
This guy either has a birth certificate or he doesn’t. I didn’t think it was such a big deal, but I will tell you, it is turning out to be a very big deal. People are calling me from all over saying please don’t give up on this issue. If you weren’t born in this country, you cannot be president. You have no doctors that remember, you have no nurses — this is the President of the United States — that remember. Why can’t he produce a birth certificate? I brought it up just routinely, and all of a sudden, a lot of facts are emerging and I’m starting to wonder myself whether he was born in this country?
(As an aside, I love the idea that in 1961, when doctors brought a half-white, half-black baby into the world, they should have committed the moment to memory because “this is the President of the United States.”
Trump’s comments are grabbing a great deal of attention. David Frum, for example, wants to know whether Trump is nuts or just thinks GOP primary voters are stupid. Like I said at the top, I’m wondering if perhaps the Donald is really an Obama catspaw.
Republicans firmly grounded in reality have long groused that birtherism is a construct of Democrats, liberals, and the media, a–no pun intended–trumped up issue designed to make conservative look like nutty conspiracy theorists. Polls showing large numbers of GOPers doubting Obama’s origins seem to belie that, as do apparent dog-whistles by GOP leaders who dance around the birther question by treating it as something other than proven fact (“we should take the president at his word,” Michele Bachmann said last month) or refusing to call out the birthers (“it’s not my job to tell the American people what to think,” John Boehner demurred last month).
But with a GOP primary field composed of professional politicians who know better than to tread beyond winks, nods, and dog-whistles, who benefits the most from a GOP candidate willing to go full birther? With Trump in a presidential debate (the first one will be May 2) making birtherism his signature issue, the rest of the GOP field will be forced to weigh in definitively and either alienate the rabid base (the people who vote in Republican primaries and, according to one recent poll, are majority birther) or risk alienating centrist voters.
The Democratic National Committee’s opposition research department must be licking their collective chops. They couldn’t have invented a better sabotage candidate than Trump: Unserious enough to actually wave the bloody birth certificate, but wealthy and famous enough that he’s impossible to ignore.
Now, do I believe that Donald Trump is really a Democratic plant? It’s tempting to say that I’m just raising questions about the Donald in the same spirit that he is about the president. But I’d put it this way: This conspiracy theory requires as big a suspension of disbelief as does contemplating President Donald Trump.
Politico’s Ben Smith brings the kicker to the whole story. Trump made a big show Monday of releasing his own birth certificate in an effort to push the “issue.” One problem: He didn’t release a legally valid birth certificate, which would have the New York City Department of Health’s seal and the signature of the city registrar. Smith adds, tongue happily in cheek:
Trump’s mother, it should be noted, was born in Scotland, which is not part of the United States. His plane is registered in the Bahamas, also a foreign country. This fact pattern — along with the wave of new questions surrounding what he claims is a birth certificate — raises serious doubts about his eligibility to serve as President of the United States.
Hmmm, makes you wonder…
By: Robert Schlesinger, U. S. News and World Report, March 29, 2011
The Kochs And Libertarian Hypersensitivity
I find the extreme sensitivity displayed by libertarians toward criticism of the Koch brothers is really strange. Here’s a typical example, from David Bernstein:
The ongoing twenty minutes of hate against the billionaire libertarian Koch brothers for being, well, billionaire libertarians is yet another nail in the already well-sealed coffin of “liberaltarianism”–the attempt of some libertarians to ally with the progressive left.
The underlying premise of liberaltarianism was that libertarians could emphasize their policy positions that appeal to liberals but not conservatives–drug legalization, hostility to war and military spending, support for civil liberties and for gay marriage–while liberals, chastened by the Bush years, would tone down their support for big government in other areas.
The Kochs would appear to be the perfect liberaltarians–they support gay marriage, drug legalization, opposed the Iraq War, want to substantially cut military spending, and gave $20 million to the ACLU to oppose the Patriot Act (compared to a relatively piddling $43,000 to Scott Walker’s election campaign).
The comparison to 1984 lends this complaint an especially melodramatic touch — the point of the two-minute hate was that it targeted powerless or fictitious villains. I’m pretty sure that Emmanuel Goldstein was not supposed to have been actually exerting enormous influence over the political system in Oceania.
And the notion that the Kochs are “perfect liberaltarians,” of course, completely misses the point of liberaltarianism, which was to emphasize social issues and foreign policy over economics, and to define economics as evidence based and less hostile to redistribution and the possibility of market failure. Koch-brand libertarianism is obviously the precise opposite of each of those characteristics.
And while I certainly can’t speak for the liberaltarians, I suspect liberal criticism of the Kochs is unlikely to send them back to Koch-funded right-aligned libertarian organizations, given that those organizations very recently purged the liberaltarians.
But leave all that aside. Why do libertarians find it so offensive that people would criticize the Kochs? They exert a great deal of influence over the political system. Nobody is challenging their right to do so, but the fact of their involvement makes them natural subjects for criticism. Conservatives (and libertarians) enjoy criticizing and ridiculing figures such as Al Gore, Dan Rather and Paul Krugman, who influence public opinion as well, and whose pecuniary interest in doing so is, at best, much less obvious than the Kochs’.
The hypersensitivity about this honestly baffles me. Some of it has to do with the discomfort libertarians, who enjoy their self-image as scrappy outsiders, feel an association with powerful moguls. Some of it may result from the fact that it’s unusual for a libertarian to assume such a high-profile role in American politics, and so libertarians may not blink at criticism of a George Soros or an Adolph Coors but suddenly find their hearts bleeding at the sight of libertarian moguls facing actual public scrutiny. In any case, the sheer self-pity on behalf of these extremely wealthy, powerful individuals is quite a spectacle.
By: Jonathan Chait, The New Republic, March 16, 2011
What Wisconsin Democrats Can Teach Washington Democrats
Consider the contrast between two groups of Democrats, in Wisconsin and in the nation’s capital.
Washington Democrats, including President Obama, have allowed conservative Republicans to dominate the budget debate so far. As long as the argument is over who will cut more from federal spending, conservatives win. Voters may think the GOP is going too far, but when it comes to dollar amounts, they know Republicans will always cut more.
In Wisconsin, by contrast, 14 Democrats in the state Senate defined the political argument on their own terms – and they are winning it.
By leaving Madison rather than providing a quorum to pass Gov. Scott Walker’s assault on collective bargaining for public employees, the Wisconsin 14 took a big risk. Yet to the surprise of establishment politicians, voters have sided with the itinerant senators and the unions against a Republican governor who has been successfully portrayed as an inflexible ideologue. And in using questionable tactics to force the antiunion provision through the Senate on Wednesday, Republicans may win a procedural round but lose further ground in public opinion.
Here’s the key to the Wisconsin battle: For the first time in a long time, blue-collar Republicans – once known as Reagan Democrats – have been encouraged to remember what they think is wrong with conservative ideology. Working-class voters, including many Republicans, want no part of Walker’s war.
A nationwide Pew Research Center survey released last week, for example, showed Americans siding with the unions over Walker by a margin of 42 percent to 31 percent. Walker’s 31 percent was well below the GOP’s typical base vote because 17 percent of self-described Republicans picked the unions over their party’s governor.
At my request, Pew broke the numbers down by education and income and, sure enough, Walker won support from fewer than half of Republicans in two overlapping groups: those with incomes under $50,000 and those who did not attend college. Walker’s strongest support came from the wealthier and those with college educations, i.e., country club Republicans.
Republicans cannot afford to hemorrhage blue-collar voters. In a seminal article in the Weekly Standard six years ago, conservative writers Reihan Salam and Ross Douthat observed: “This is the Republican Party of today – an increasingly working-class party, dependent for its power on supermajorities of the white working-class vote, and a party whose constituents are surprisingly comfortable with bad-but-popular liberal ideas like raising the minimum wage, expanding clumsy environmental regulations, or hiking taxes on the wealthy to fund a health care entitlement.”
Put aside that I favor the policies Douthat and Salam criticize. Their electoral point is dead on. In 2010, working-class whites gave Republicans a 30-point lead over Democrats in House races. That’s why the Wisconsin fight is so dangerous to the conservative cause: Many working-class Republicans still have warm feelings toward unions, and Walker has contrived to remind them of this.
Which brings us to the Washington Democrats. Up to now, the only thing clear about the budget fight is that Democrats want to cut less from discretionary spending than Republicans do. Quietly, many Democrats acknowledge that they have been losing this argument.
Thus the importance of a speech on Wednesday by Sen. Charles E. Schumer, a New York Democrat, intended to “reset the debate.” As Schumer noted, the current battle, focused on “one tiny portion of the budget,” evades the real causes of long-term budget deficits.
Schumer dared to put new revenue on the table – including some tax increases that are popular among the sorts of blue-collar voters who are turning against Walker. Schumer, for example, spoke of Obama’s proposal to end subsidies for oil and gas companies and for higher taxes on “millionaires and billionaires.” Yes, closing the deficit will require more revenue over the long run. But right now, the debate with the House isn’t focusing on revenue at all.
Schumer, who spoke at the Center for American Progress, also suggested cuts to agriculture subsidies and in unnecessary defense programs. He proposed changes in Medicare and Medicaid incentives that would save money, including reform of how both programs pay for prescription drugs. The broad debate Schumer called for would be a big improvement on the current petty argument, which he rightly described as “quicksand.”
To this point, Washington Democrats have been too afraid and divided to engage compellingly on the fundamentals of what government is there to do and how the burdens of deficit reduction should be apportioned. Wisconsin Democrats have shown that the only way to win arguments is to take risks on behalf of what you believe. Are Washington Democrats prepared to learn this lesson?
By: E. J. Dionne, Op-Ed Colunist, The Washington Post, March 10, 2011
Deficit Hawks and The Games They Play
For 30 years, conservative ideologues have played moderate deficit hawks for suckers.
You’d think this might endow those middle-of-the-road deficit-busters with a touch of humility. Fat chance. They stick with their self-righteous moralism, pretending to be bipartisan and beyond ideology. In fact, they make the problem they want to solve worse by continuing to empower the tax-cuts-in-every-season conservatives.
It’s thus satisfying to see President Obama ignore the willfully naive who are wailing over deficits. He knows that new revenue will have to play a big role in deficit reduction. He also knows that House Republicans are pretending we can cut our way out of this mess and would demagogue any general tax increases.
So he has proposed some serious spending cuts and some modest revenue increases to keep things stable as he embarks on a long struggle to move our dysfunctional budget politics to a better place. This annoys his deficit-obsessed critics, by which I mean just about everyone who says he should simply embrace the proposals of the Bowles-Simpson commission. Obama should smile, let them rage and go about his business.
Let’s look at history. When Ronald Reagan took office in 1981, he won big tax cuts coupled with big increases in military spending. The tax cuts and a severe recession tanked government revenue.
Unlike today’s conservatives, Reagan at least acknowledged mathematical reality and signed some tax increases. But these were insufficient, and it fell first to George H.W. Bush – the last truly fiscally responsible Republican – and then to Bill Clinton to restore budgetary sanity.
But the conservatives who dug the hole did nothing to get us out of it. On the contrary, they denounced the first President Bush for raising taxes, and every Republican voted against Clinton’s economic plan. For their bravery in supporting tax increases in 1993, Democrats lost control of Congress in 1994.
By the end of the Clinton years, we had a handsome surplus. In came the second President Bush who, with Republicans in Congress, declared the surplus too big. It was one problem they worked very hard to solve. Two tax cuts and two wars later, we were plunged into deficits – again. And the economic downturn that started on Bush 43’s watch made everything worse, cutting revenue and requiring more deficit spending to get the economy moving.
Where were the moderate deficit hawks in all this? They have a very bad habit. When conservatives blow up our fiscal position with their tax cuts, the deficit hawks are silent – or, at best, mumble a few words of mild reproach to have something on the record – and let the budget wreckage happen. Quite a few in their ranks (yes, including some Democrats) actually supported the Bush tax cuts.
But when it’s the progressives’ turn in power, the deficit hawks become ferocious. They denounce liberals if they do not move immediately to address the shortfall left by conservatives. Thus, conservatives get to govern as they wish. Liberals are labeled as irresponsible unless they abandon their own agenda and devote their every moment in power to cutting the deficit.
It’s a game for chumps. The conservatives play it brilliantly. By winning their tax cuts and slashing government revenue, they constrain what liberals can do whenever they get back into power.
How do we know our difficulties stem primarily from a shortage of revenue? Consider what would happen if we allowed all the tax cuts scheduled to expire in 2012, including the ones enacted under Bush, to go away. That would produce nearly as much deficit reduction over the next decade – roughly $4 trillion – as all the maneuvers of the Bowles-Simpson commission put together. If you want to be serious about closing the deficit, ending the Bush tax cuts is a good place to start.
The commission’s work showed just how effective conservatives have been. By saying they will never, ever, ever raise taxes, conservatives intimidate moderates into making concession after concession.
In the end, the Senate conservatives on the commission – but not the House conservatives – supported some mild tax increases. But Bowles-Simpson proposed about twice as much in spending cuts as in revenue increases. You would think that moderates could at least hold out for a 50-50 split. But no, they’ll do anything to win over a few conservatives.
As a result, any conservative who supports even the smallest tax increase is hailed as courageous. Any liberal who proposes moderate spending cuts is condemned as a gutless coward unless he or she also supports slashing Social Security and Medicare. What’s “moderate” or “balanced” about this?
I hope Obama has the spine to keep calling the bluff of the deficit hawks until they get serious about changing the politics of deficit reduction. We can’t afford another 30 years of fiscal evasion.
By: E. J. Dionne, Jr-Op-Ed Columnist, The Washington Post, originally posted February 17, 2011
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