A Death Blow to Class Action?

Tanya Hernandez in The New York Times, June 21, 2011

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Far From Random Bias
by Tanya Hernandez

The most disconcerting aspect of the decision is the notion that Wal-Mart’s vast size effectively insulates its promotion and wage decisions from scrutiny.

The court's conclusion is tantamount to allowing Wal-Mart’s large size to shield it from appropriate judicial inquiry. It is true that the Supreme Court never overtly states that Wal-Mart is “too big to assail.” Yet the court’s conclusion that the female employees’ multitude of different jobs in 3,400 stores across 50 states undermines a finding of commonality in their discrimination claim against Wal-Mart is tantamount to allowing Wal-Mart’s large size to shield it from appropriate judicial inquiry.

In fact, the vast number of female employees who sought to be certified as a single class for purposes of filing the lawsuit because they were similarly underpaid and not promoted to management positions in vastly disproportionate rates compared with their male colleagues is a testament to the need for a large-scale scrutiny of Wal-Mart’s corporate culture and practices that could so systematically subordinate its female employees.

The women held different jobs, at different levels, in different parts of the country, yet they were all poorly positioned in comparison their male co-workers in such significant rates that statisticians could confidently assert that the results were not random.

In addition to the persuasive statistical data that the women presented there was also evidence that Wal-Mart refused to establish concrete criteria for setting wages and awarding promotions that the business world has long understood as a mechanism for containing the inappropriate influence of subjective unconscious bias.

Indeed, Wal-Mart’s firm adherence to the practice of delegating large unmonitored discretion to supervisors to make personnel decisions has operated as the perfect tool for maintaining gender inequality behind the well-known veil of a purely formal written equal opportunity policy. While the court’s decision today will not prevent the women from filing individual claims of discrimination, their ability to investigate a harmful pattern and practice of discrimination will be substantially hindered without certifying them as a class.

Given Wal-Mart's size in the labor market, this court decision not only disserves the plaintiffs’ search for justice, it also disserves all women’s search for gender equality.

Tanya Hernandez is professor of law at Fordham University School of Law. She writes and teaches in the area of comparative employment discrimination law.