Too Big To Try

The Supreme Court today came down like a hammer on the massive Wal-Mart sexual discrimination suit.

The Supreme Court put the brakes on a massive job discrimination lawsuit against mega-retailer Wal-Mart Stores, Inc., saying sweeping class-action status that could potentially involve hundreds of thousands of current and former female workers was simply too large.

The ruling Monday was a big victory for the nation's largest private employer, and the business community at large.

The high-profile case– perhaps the most closely watched of the high court's term– is among the most important dealing with corporate versus worker rights that the justices have ever heard, and could eventually impact nearly every private employer, large and small.

The court decided three issues involving the case of Wal-Mart Stores, Inc. v Dukes (full opinion here, PDF).  First, the court decided 9-0 that the class action suit violated Wal-Mart's right to defend itself against the claim, second, 5-4 (Roberts, Alito, Thomas, Scalia, Kennedy for) that the class action suit itself was too general and broad, and third, 9-0 that the back pay granted by the 9th Circuit was in violation of federal law based on the previous two issues.

It's that second issue that sets a new standard for what a class-action suit can entail.  Justice Scalia writes:

The crux of this case is commonality—the rule requiring a plaintiff to show that “there are questions of law or fact common to the class.” Rule 23(a)(2).5 That language is easy to misread, since “[a]ny competently crafted class complaint literally raises common ‘questions.’ ” Nagareda,Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 131–132 (2009). For example: Do all of us plaintiffs indeed work for Wal-Mart? Do our managers have discretion over pay? Is that an unlawful em-ployment practice? What remedies should we get? Reciting these questions is not sufficient to obtain class certification. Commonality requires the plaintiff to demonstrate that the class members “have suffered the same injury,” Falcon, supra, at 157. This does not mean merely that they have all suffered a violation of the same pro-vision of law. Title VII, for example, can be violated in many ways—by intentional discrimination, or by hiring and promotion criteria that result in disparate impact, and by the use of these practices on the part of many different superiors in a single company. Quite obviously,the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate-impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of class wide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.

In other words, the class action case against Wal-Mart's corporate culture of gender discrimination was thrown out by the Supreme Court because it was just too broad.  Discrimination cases must have a common human violator, not a corporation, in order to qualify for class-action status.

In other words, SCOTUS just basically threw a wrench in every corporate class-action discrimination suit in the country.  It's interesting to note that the same court who gave corporations near-human entity status to exercise free speech through unlimited campaign donations in Citizens United has just ruled that corporations must receive special protections as a collective entity against discrimination lawsuits.  Carrie Lukas at the National Review concurs:

This is good news for anyone concerned about our already-suffering economy, since a decision to allow this case to continue would have fundamentally changed the definition of what constitutes a class for litigation purposes and opened the flood gates for other class-action suits, which distract businesses from their missions and drain resources away from productive uses, such as hiring workers.

Of course, we know that's a lie.  Businesses are sitting on record amounts of cash right now, but they're not hiring.  If the National Review is right here, then this decision alone should drop the unemployment rate by a significant amount, yes?

John Nichols at The Nation has the opposite opinion:

When the Supreme Court says that the nation's largest private employer cannot be taken to task for discriminating against its current former employees because that discrimination appears to have taken place on a massive scale, it is signaling that that the justices have made a ominous choice not just with regard to business but with regard to civil society and democracy. They will protect corporations before they protect workers and citizens.

Corporations are people when it comes to giving money, they are special legal entities when it comes to being named in large discrimination cases.  Funny how that works.