by Leslie Morgan Steiner
Last week, the U.S. Supreme Court took on the biggest employment discrimination case in history. The landmark suit pitted the country’s largest private employer, Walmart, against roughly 1,500,000 of its current and former female workers . The case, which was been wending its way through our court system for a decade, had clearcut statistics: women made up 65 percent of the lower-level hourly workforce, but only 33 percent of the management employees. Female employees overall were paid on average $1.16 per hour less than men in the same job, despite having more seniority, lower turnover rates and higher performance ratings.
Cynics predicted that it would be difficult for a Supreme Court that is widely viewed as business-friendly to rule against a corporate giant like Walmart. But women are big business today too. We are the most valuable human resource in the country. We’re better educated, with more college degrees than men, and an increasing percentage of graduate degrees. Women control $1.7 trillion in annual purchasing; we influence 85% of purchase decisions, including a whole lot at Walmart.
Walmart’s simple defense against the suit? The case is too big. Too many woman are involved. Too many Walmart stores are implicated. Employees at too many levels, from entry-level positions up to managers, experienced discrimination.
This bizarre logic had me scratching my head. The case should be dismissed because too many women are affected? Because gender bias and pay discrimination are so widespread at Walmart and in society that we need to accept them?
I had hoped our wise village elders on the Supreme Court would see through Walmart’s legal wrangling.
Unfortunately for all of us, there seemed to be little head-scratching among the Supreme Court justices. Two days after hearing oral arguments, in one of the speediest decisions ever returned by the Court, a majority agreed with Walmart in a baffling 5-4 ruling. The verdict was announced Friday, April 1st but it was no April Fool’s joke.
The quick timing seemed intended as a slap to the Walmart women and a deterrent to future female class action lawsuits. Many Supreme Court decisions take months or the better part of a year to debate, write up and issue to the public. But the Walmart case, despite having been complicated enough to occupy lower courts for ten years, was decided in a snap of the judges’ fingers. The implicit message seems to be: don’t you ladies go trying this again.
Forget fighting for equal pay and workplace respect. That means you, the 3,074,000 secretaries and administrative assistants making our country’s businesses and government offices thrive. Ditto for the 2,612,000 registered nurses who care for us when we get sick. The 3,264,000 elementary and middle school teachers patiently teaching our children. The 2,273,000 cashiers counting our change. The 2,265,000 cooks and waitresses feeding us. The 1,228,000 child care workers who make it possible for parents with young children to hold down jobs .
Symbolically, all working women in America are Walmart Women. At least those of us who have been paid less than a man or held to a different, higher standard than male colleagues. We know through painful experience that banding together as a group is the only solution to discrimination. Individually, these cases are hard to prove and hard to win – in part because one woman’s back pay is too small a payout to attract most discrimination lawyers. Class action was our only chance at leveling the playing field and applying societal, in addition to legal, pressure on companies that discriminate against women.
Part of the problem here was that groups more influential than 46.8 percent of the US workforce banded together, and their collective bargaining power outweighed the Walmart women. More than 20 major U.S. companies, including General Electric, Microsoft and Costco, filed briefs in support of Walmart out of fear that these types of class actions could ruin their businesses.
More head scratching. Large employers – because they are large -- should be allowed to discriminate against women? Walmart’s size and influence is precisely why the Supreme Court should have heard this case.
In Animal Farm logic, the Supreme Court ruled Friday that the only way a class action suit could proceed is if the company has a written statement promoting a purely discriminatory hiring policy . Walmart argued that the company has a staunch policy against discrimination. In other words, Walmart can’t be accused of fostering discriminate – as long as it does not have a written policy specifically promoting discrimination.
Unfortunately, almost all of us know that discrimination today occurs in subtle, one-to-one cases that are never – could never – be captured by a company memo or policy statement. The boss who kindly removes all your direct reports and largest clients while you are on maternity leave, to make your job “easier” now that you have children. The male colleague who teases you in board meetings about your upcoming “vacation” as you waddle under the weight of an eight pound baby feeling like you are ready to explode. The team member who schedules weekly meetings – an hour after the daycare center closes. The white men who seem to have a puzzling preference for hiring and promoting other white men, despite other candidates’ superior educational credentials or work experience.
I’d like to hear what Justice Alito thinks the 66 million working women in America should do when confronted with discrimination. Suffer in silence? Return to hand-to-hand combat against discriminatory bosses? Quit our jobs? Kill our bosses? Struggle through mediocre careers and less than average pay despite hard work and stellar job performance? Retreat to the convent?
Perhaps the underlying message – a very tired old message – is that women are asking for “too much” in wanting to be treated and paid equally. When men think big, they are praised as ambitious. When women think big, as they did in the Walmart case, they are put down by the highest court in the land. The Court’s message seems to reinforce a clear and destructive double standard, based definitely upon gender.
I vote that the next female class action discrimination lawsuit should be filed against our country’s Supreme Court.