Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan all voiced at least qualified support yesterday for the class-action suit, which claims women across the country were victimized by Wal-Mart’s practice of letting local managers make subjective decisions about pay and promotions. The dispute marks the first gender-bias case the court has considered with three women on the bench.
The three took the lead in questioning Wal-Mart’s attorney, Theodore Boutrous. Ginsburg spoke about how corporate decision- makers tend to hire people like themselves, while Sotomayor endorsed the use of statistical analysis in discrimination cases. Kagan balked when Boutrous said the workers’ case was based on an “incoherent theory.”
“I guess I’m just a little bit confused as to why excessive subjectivity is not a policy that can be alleged” as the basis of a job-discrimination suit, said Kagan, the newest justice.
Their queries put them at odds with Justices Antonin Scalia and Anthony Kennedy, who questioned whether the women had pointed to a corporate policy that violated their rights under the main federal job-bias law, known as Title VII. The justices are considering whether potentially a million female employees at Wal-Mart have enough in common to warrant allowing a single nationwide suit against the company.
Scalia said the company had an “announced policy against sex discrimination” and expressed disbelief when the lawyer representing the women argued that the reality was just the opposite.
“Do you think you’ve adequately shown that that policy is a fraud and that what’s really going on is that there is a central policy that promotes discrimination against women?” Scalia said.
Ginsburg, who was a leading anti-discrimination advocate before she became a judge, left little doubt that she took a different view about the pervasiveness of gender bias in the workplace. She likened the case to a successful suit in the 1970s against American Telephone and Telegraph Co. over the use of a “total person” test to make promotion decisions.
“The idea wasn’t at all complicated,” Ginsburg said. “It was that most people prefer themselves and so a decision-maker, all other things being equal, would prefer someone that looked like him.”
The Wal-Mart case “sounds quite similar,” Ginsburg said.
Sotomayor interjected more than a dozen times, often focusing on technical questions and at one point suggesting a middle ground that would allow a more narrow class action to go forward.
She challenged Boutrous when he argued that the plaintiffs hadn’t shown a nationwide pattern of lower pay for women. The justice said the plaintiffs’ expert witness had concluded that the pay disparity between men and women at Wal-Mart was much higher than at 10 competitors.
“Why is that kind of statistical analysis inadequate to show that a policy of some sort exists?” Sotomayor asked.
Each of the three female justices “had a very different style,” said Marcia Greenberger, co-president of the National Women’s Law Center. Having three women on the bench for a gender-discrimination case “in and of itself was extraordinary to see,” she said.
Breyer Alone Concurs
Justice Stephen Breyer was the lone male justice who suggested he agreed with his female colleagues. He joined Sotomayor in asking Boutrous why the justices couldn’t at least allow a limited class action seeking an injunction against the company. “We’ve got a common issue,” Breyer said.
The case ultimately may divide the court along familiar lines, leaving those four in dissent.
Kennedy, often the court’s swing vote, suggested the workers could press a nationwide class action only if they could show the company tolerated gender discrimination through “deliberate indifference.”
He also told the workers’ lawyer that the complaint “faces in two directions.”
“You said this is a culture where Arkansas knows, the headquarters knows, everything that’s going on,” Kennedy said. “Then in the next breath, you say, well, now these supervisors have too much discretion. It seems to me there’s an inconsistency there, and I’m just not sure what the unlawful policy is.”
The case is Wal-Mart Stores v. Dukes, 10-277.