Justices Rule for Wal-Mart in Bias Case

WASHINGTON — The Supreme Court on Monday threw out the largest employment discrimination case in the nation’s history.
The suit, against Wal-Mart Stores, had sought to consolidate the claims of as many as 1.5 million women on the theory that the company had discriminated against them in pay and promotion decisions.
The lawsuit sought back pay that could have amounted to billions of dollars. But the Supreme Court, ’in a decision that was unanimous on this point, said the plaintiffs’ lawyers had improperly sued under a part of the class action rules that was not primarily concerned with monetary claims.
The court did not decide whether Wal-Mart had in fact discriminated against the women, only that they could not proceed as a class. The court’s decision on that issue will almost certainly affect all sorts of other class-action suits, including ones asserting antitrust, securities and product liability violations.
In a broader question in the Wal-Mart case, the court divided 5-to-4 along ideological lines on whether the suit satisfied a requirement of the class-action rules that “there are questions of law or fact common to the class.”
Justice Antonin Scalia, writing for the majority, said the plaintiffs could not show that they would receive “a common answer to the crucial question why was I disfavored.” He noted that Wal-Mart, the nation’s largest private employer, operated some 3,400 stores, had an express policy forbidding discrimination and granted local managers substantial discretion.
“On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action,” Justice Scalia wrote. “It is a policy against having uniform employment practices.”
The case involved “literally millions of employment decisions,” Justice Scalia wrote, and the plaintiffs were required to point to “some glue holding all those decisions together.”
The plaintiffs sought to make that showing with testimony from William T. Bielby, a sociologist specializing in “social framework analysis.”
Professor Bielby told the trial court that he had collected general “scientific evidence about gender bias, stereotypes and the structure and dynamics of gender inequality in organizations.” He said he also reviewed extensive litigation materials gathered by the lawyers in the case.
He concluded that two aspects of Wal-Mart’s corporate culture might be to blame for pay and other disparities. One was a centralized personnel policy. The other was allowing subjective decisions by managers in the field. Together, he said, those factors allowed stereotypes to infect personnel choices, making “decisions about compensation and promotion vulnerable to gender bias.”
Justice Scalia rejected the testimony, which he called crucial to the plaintiffs’ case.
“It is worlds away,” he wrote, “from ‘significant proof’ that Wal-Mart ‘operated under a general policy of discrimination.’ ”
Nor was Justice Scalia impressed with the anecdotal and statistical evidence offered by the plaintiffs.
One of the plaintiffs named in the suit, Christine Kwapnoski, had testified, for instance, that a male manager yelled at female employees but not male ones and had instructed her to “doll up.” Justice Scalia said that scattered anecdotes — “about 1 for every 12,500 class members,” he wrote — were insignificant.
He added that statistics showing pay and promotion gaps were insufficient to show common issues among the plaintiffs, as discrimination is not the only possible explanation. “Some managers will claim that the availability of women, or qualified women, or interested women, in their stores’ area does not mirror the national or regional statistics,” Justice Scalia wrote. “And almost all of them will claim to have been applying some sex-neutral, performance-based criteria — whose nature and effects will differ from store to store.” Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined Justice Scalia’s majority opinion on that broader point. But the court unanimously rejected the plaintiffs’ effort to proceed under a part of the class action rules concerned mainly with court declarations and orders as opposed to money, one that does not require notice to the class or provide the ability to opt out of it.
Justice Ruth Bader Ginsburg, joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, dissented in part. Justice Ginsburg said the court had gone too far in its broader ruling.
She said she would have allowed the plaintiffs to try to make their case under another part of the class-action rules. “The court, however, disqualifies the class at the starting gate” by ruling that there are no common issues, she wrote.
She added that both the statistics presented by the plaintiffs and their individual accounts were evidence that “gender bias suffused Wal-Mart’s corporate culture.” She said, for instance, that women filled 70 percent of the hourly jobs but only 33 percent of management positions and that “senior management often refer to female associates as ‘little Janie Qs.’”
“The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects,” she wrote. “Managers, like all humankind, may be prey to biases of which they are unaware.”