Wal-Mart v. Dukes ruling is out of sync with 21st-century sex discrimination
In Wal-Mart v. Dukes, the Supreme Court set a dangerous precedent when it ruled that the women in the class action suit could not prove a common culture of sex discrimination. But sexism is no longer written in official policy. It's engrained in culture.
The Supreme Court’s ruling in favor of “the world’s biggest boss,” as GritTV’s Laura Flanders put it, in the Wal-Mart v. Dukes sex discrimination class action lawsuit this week is a major blow to working women across America. And perhaps even more important, it’s a sign that some of the esteemed judges on our nation’s highest court need a primer in how contemporary discrimination functions.Skip to next paragraph
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The court decided 5-4 that up to 1.5 million former and current female employees couldn’t file suit against Wal-Mart together as a class because there was scant evidence of institutionally sanctioned or organized discrimination by the company. But women make up over 65 percent of hourly employees at Wal-Mart, and only 34.5 percent of managers. In other words, Wal-Mart – like so many of America’s biggest businesses – has a gender and leadership problem.
In his majority opinion, however, Justice Antonin Scalia argued that numbers like these, coupled with stories about the widespread exclusion of and humiliation of women, didn’t constitute discrimination because, well, Wal-Mart has a non-discrimination policy.
Further, he wrote that Wal-Mart’s policy of allowing discretion by local supervisors in employment practices – importantly, uncharacteristic of the corporation’s overall micromanaging style – was “just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices.”
A lesson in 21st century discrimination
Apparently Mr. Scalia needs a lesson in 21st century discrimination. This is a time in which discrimination of all kinds doesn’t usually advertise itself on “white’s only” water fountain signs and “woman wanted” ads for secretary positions in Sunday’s neighborhood newspaper. It’s a time when racism, sexism, and other forms of discrimination are entrenched in our culture – insidious, covert, often subtle. It’s a time when the distribution of power – money, jobs, influence – is almost entirely dependent on informal relationships born of a still alarmingly segregated society.
It’s not company rules that most brave working women have to challenge these days; it’s informal and widespread exclusion. As Rinku Sen wrote in ColorLines magazine: “Certainly, there has been some blatantly sexist behavior among Wal-Mart managers…but mostly, Wal-Mart’s system runs on silence.”
At Wal-Mart, as with so many American companies, men speak the private language of promotion and negotiation, while women are left confused as to where the pipeline to power and new opportunities even starts. With women still taking on the majority of caretaking responsibilities, their second shift often prevents them from doing the kind of after-hours bonding necessary, were their male managers even willing to bring them into the “inner circle.”
Culture is hard to legislate, but it's a real factor
Culture, of course, is harder to discuss, legislate, and change than policies, but that doesn’t mean that our nation’s highest court is off the hook. As Justice Ruth Bader Ginsberg pointed out in her dissenting opinion in this, the largest attempted class action suit ever: “Managers, like all humankind, may be prey to biases of which they are unaware. The risk of discrimination is heightened when those managers are pre-dominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes.”