Plaintiffs in Wal-Mart case need to sue again – with feeling

It’s a good time for big business in America.

First, taxpayers provide the money to pay multi-million bonuses for CEOs that literally took the country to the brink of a second Great Depression.

Now, the U.S. Supreme Court has ruled that women fighting Wal-Mart could not sue for discrimination because too many women indiscriminately claimed that they were discriminated against.

The court threw out an employment discrimination class-action suit against Wal-Mart that sought billions of dollars on behalf of as many as 1.5 million female workers. The court, quite frankly, said the case was too big and didn’t offer enough evidence.

It was like saying: You can’t convict a serial killer of killing 1,000 people just because they were all connected to one person, they were all killed the same way and their families had complained about how that one person treated them.

Circumstantial evidence instead of specific evidence.

Continuing the murder analogy, each family would have to sue – in an O.J. Simpson case way – on behalf of each victim, flooding the courts with more than a million suits instead of allowing all the families to sue together. Or they’d have to include only women who had concrete proof of discrimination. That thinking protects an atmosphere of discrimination. But it leaves open a door to possibly end specific discrimination.

Specifically, according to a New York Times report on the decision, the court ruled five to four – right versus left – that the suit did not satisfy a requirement that there were questions of law common to the class of female employees. The fact that they all claim they were discriminated against wasn’t enough. They each had to prove they were discriminated against individually before they could join as a class to file for discrimination as a group.

Ideally, the decision seems fair: You wouldn’t want every woman who ever worked for Wal-Mart to join the suit just because. That would be like an attorney filing a lawsuit on behalf of every black person in America because all black people have been racially discriminated against.

It might be true. But in court, you must offer specific proof.

Chief Justice Antonin Scalia declared, properly, that scattered anecdotes — “about 1 for every 12,500 class members,” were insignificant. But you know what else he did: Admitted that there was one case for every 12,500 class members. That, in itself, was something the court could have dealt with.

Justice Ruth Bader Ginsburg, joined in dissent by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, would have allowed the suit to go forward under a different section of the class-action rules, according to the Times. She said that statistics presented by the plaintiffs as well as their individual accounts were evidence that “gender bias suffused Wal-Mart’s corporate culture.”

“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.”

So in this case, if it walks like a duck and quacks like a duck, but there are too many ducks to determine what they’re quacking, the plaintiffs must do a better job of translation.

Here’s what should happen: From this decision should rise an independent entity, one like the New York-based Innocence Project. It could be called the Guilt Project, and it could collect legitimate cases of employment discrimination at the 3,500 Wal-Marts across the country – solid, provable cases of discrimination.

Then a group of knowledgeable and experienced labor attorneys could file suit on behalf of those women.

Discrimination should not be allowed to continue just because there’s too much of it.


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