I generally consider myself a well-informed person on the way the United States works, having taken both a government and a U.S. history class in high school, even if I should pay more attention to current issues than I do. Despite various disappointments, I do put a fair amount of trust in our government’s institutions. The world is not a perfect place, nor is the country, but hey, my life doesn’t suck too badly. I’ve got freedom, I have rights.
So imagine my surprise upon hearing of a landmark Supreme Court decision made yesterday that significantly impacts my rights as a woman, and my future on World News Tonight this evening; a decision that had a air of sense to it and then took a turn for misogynistic. Tonight, I discuss the Wal-Mart v. Dukes case.
Now, I’ll admit that I have a deep and personal hatred of Wal-Mart that stems from their company practices which is another story for another day, but after reading about this case I’d rather be fucked in the ass with a red-hot fire poker in public than ever, ever set foot in there again. And I’d like to do just that to Antonin Scalia. (Okay, maybe that’s extremist. How about a cactus, then.)
So, the case (forgive me if I mess up the legal jargon): female employees were suing Wal-Mart in a class action suit for discrimination on the basis of gender, with as many as 1.5 million plaintiffs involved. Mostly, this case went to the Supreme Court to see if this sort of suit were really allowed, and if its certification as 23(a) and (b)(2) was correct. As it turns out, the certification was wrong, and if that were all we’d put this issue to rest. But then, Scalia, who wrote the opinion, went on unnecessarily that it didn’t really matter the certification, since there was simply no way the women could prove enough commonality between them (under 23(a) I believe) to win the case anyway, in part because their sociologist couldn’t estimate the percentage of decisions that were affected by discriminatory practice.
……………………okay.
This is where things start to get ugly. What Scalia is saying is that he believes Wal-Mart when they say that they have a strong anti-discrimination policy, because their word is good, although all evidence would point to the contrary. But the policy’s there in writing! That’s enough, right? The plaintiffs in this case were shut down because hiring and promotion decisions are made by managers, who differ from region to region. Apparently, this makes each woman’s case too individual to count as true commonality. It protects the company from these sorts of suits because they can simply say that since it’s the manager’s decision and the policy’s in place, they are not at fault. Essentially, Wal-Mart is asking the people in charge of these things to act perfectly and follow excellent company policy 100% of the time, because we all know that people can always be trusted to do the right thing. Ahem. If you have paid any attention at all to history, you should know this is not the case. Not when approximately three quarters of Wal-Mart’s managers are male, not when its competitors seem to be able to promote more women and pay them better, not when big business grinds the worker bees that form its support base into the dust.
Frankly, I think Justice Ginsberg says it best in her dissenting opinion: “The plaintiffs’ evidence, including class members’ tales of their own experiences, suggests that gender bias suffused Wal-Mart’s company culture. Among illustrations, senior management often refer to female associates as ‘little Janie Qs.”” It doesn’t matter if you have a policy against discrimination, if it’s not enforced. Discretion of managers doesn’t work if it’s abused.
Beyond the gender discrimination bit, what the Supreme Court has told Americans is that yes, you may have rights, but big business has more. There’s a quote from Orwell that I often think of in situations like this, from Animal Farm: “All animals are equal, but some animals are more equal than others.” While Wal-Mart has the ability to use its size against its suppliers, Wal-Mart employees may not use the same tactic against the mothership. It’s discussed very well in this article.
Since I’m reading dystopias at the moment, this case brings them to mind. Animal Farm was a satire of communist Russia and its problems; The Handmaid’s Tale is an exaggeration of fundamentalist Christianity and the oppression of women; Brave
New World was political correctness gone mad. It won’t be those that our world slides into. It will be a world ruled by corporations, where our rights are picked away slowly in favor of big business, while they smile and tell us it’s okay, and we’ll take their word for it.
Sources for further reading
The lawyers’ take on the decision http://www.law.com/jsp/cc/PubArticleCC.jsp?id=1202498081292&InHouse_and_Labor_Lawyers_Respond_to_the_Supreme_Courts_WalMart_Decision
For more on why the practices are, indeed, discriminatory http://www.dailykos.com/story/2011/06/21/987061/-Supreme-Court-rules-for-Wal-Mart,-against-women
A good examination of the decision by Forbes http://blogs.forbes.com/danielfisher/2011/06/20/supreme-court-dumps-wal-mart-sex-discrimination-class-action/
Implications for further class action suits http://news.yahoo.com/s/nm/20110620/us_nm/us_walmart_lawsuit
Basic announcement http://news.yahoo.com/s/yblog_thelookout/20110620/us_yblog_thelookout/supreme-court-sides-with-wal-mart-says-female-employees-cant-sue-in-class-action
More on why the certification was wrong and the proof was not significant http://blogs.forbes.com/billsinger/2011/06/20/supreme-court-rejects-class-certification-and-back-pay-issues-in-wal-mart-sex-discrimination-case/
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