The New York Times
June 20, 2011
Justices Rule for Wal-Mart in Bias Case
By ADAM LIPTAK
WASHINGTON — The Supreme Court on Monday threw out the largest employment discrimination case in the nation’s history. The suit, against Wal-Mart Stores, had sought to consolidate the claims of as many as 1.5 million women on the theory that the company had discriminated against them in pay and promotion decisions.
The lawsuit sought back pay that could have amounted to billions of dollars. But the Supreme Court, in a decision that was unanimous on this point, said the plaintiffs’ lawyers had improperly sued under a part of the class action rules that was not primarily concerned with monetary claims.
The court did not decide whether Wal-Mart had in fact discriminated against the women, only that they could not proceed as a class. The court’s decision on that issue will almost certainly affect all sorts of other class-action suits, including ones asserting antitrust, securities and product liability violations.
In a broader question in the Wal-Mart case, the court divided 5-to-4 along ideological lines on whether the suit satisfied a requirement of the class action rules that “there are questions of law or fact common to the class.”
Justice Antonin Scalia, writing for the majority, said the plaintiffs could not show that they would receive “a common answer to the crucial question why was I disfavored.” He noted that Wal-Mart operated some 3,400 stores, had an express policy forbidding discrimination and granted local managers substantial discretion.
“On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action,” Justice Scalia wrote. “It is a policy against having uniform employment practices.”
The plaintiffs sought to overcome the gap with testimony from William T. Bielby, a sociologist specializing in “social framework analysis.”
Professor Bielby told the trial court that he had collected general “scientific evidence about gender bias, stereotypes and the structure and dynamics of gender inequality in organizations.” He said he also reviewed extensive litigation materials gathered by the lawyers in the case.
He concluded that two aspects of Wal-Mart’s corporate culture might be to blame for pay and other disparities. One was a centralized personnel policy. The other was allowing subjective decisions by managers in the field. Together, he said, those factors allowed stereotypes to infect personnel choices, making “decisions about compensation and promotion vulnerable to gender bias.”
Justice Scalia rejected the testimony, which he called crucial to the plaintiffs’ case.
“It is worlds away,” he wrote, “from ‘significant proof’ that Wal-Mart ‘operated under a general policy of discrimination.’ ”
Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined Justice Scalia’s majority opinion on that broader point.
Justice Ruth Bader Ginsburg, joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan, dissented in part. Justice Ginsburg said the court had gone too far in its broader ruling.
“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.”