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Hoffman: Court to women:You're on your own

Protesters outside the Supreme Court building during arguments

Protesters outside the Supreme Court building during arguments in the class action lawsuit Dukes v. Wal-Mart on March 29, 2011. Photo Credit: REUTERS/ Larry Downing / Reuters

Piper Hoffman, an attorney who has litigated sex-discrimination class action suits, blogs at

On Monday, the Supreme Court killed Dukes v. Wal-Mart, the lawsuit accusing the retail giant of paying and promoting women less than similarly or less-qualified men.

The court resorted to a procedural argument that will have the effect of protecting corporations from having to do anything to prevent discrimination beyond popping some politically correct language into employee handbooks. The justices didn't rule on whether Wal-Mart actually discriminates against women -- they didn't let the case get that far. Instead, they shut it down by changing the rules of engagement.

To bring a case as a class action in federal court, plaintiffs have to get permission from the judge to proceed as a class. This makes sense: You wouldn't want someone to file a lawsuit on your behalf without an objective outsider considering whether it was in your interest and whether the plaintiff would represent you well. So plaintiffs have to convince a judge that they satisfy certain requirements before their lawsuit can proceed as a class action.

One of requirement is that "there are questions of law or fact common to the class." The Wal-Mart plaintiffs -- up to 1.6 million women who work or used to work for Wal-Mart -- clearly alleged such commonalities, providing statistical evidence that Wal-Mart pays and promotes men more than women; Wal-Mart's policy of leaving decisions regarding promotion and (within certain ranges) pay up to individual managers; and evidence that Wal-Mart's corporate culture fosters discrimination against women. These are precisely the kind of "common questions of law or fact" that courts routinely accept.

But a majority on the court redefined this previously clear requirement beyond recognition, thwarting the Wal-Mart women. According to Justice Antonin Scalia and the four justices who ruled with him, "common questions of law or fact" now means that plaintiffs must "demonstrate that the class members have suffered the same injury."

This new interpretation raises bizarre questions. Does "same injury" mean plaintiffs must show that every single class member was denied the exact same promotion? Or that each was underpaid by the same amount?

Scalia writes that suffering "a violation of the same provision of law" won't suffice as suffering the "same injury." This is a remarkable and counterintuitive holding: It means a group cannot sue its joint employer for violating the same legal right for each member. Instead, the individuals have to prove that the legal violation harmed them in the same way.

This is completely backward: Courts exist to redress violations of the law, regardless of whether those violations cause their victims to suffer in the same or different ways. It's thanks to this procedural back flip that Wal-Mart and other employers can now delegate their way out of being responsible for discrimination in their workplaces: They can argue that different managers discriminated differently.

Before this ruling, American employers could be subject to legal liability if they delegated discretion to individual managers who created a pattern of discriminating against women. At least, the four justices in the minority believe that this was the law. Now employers have every incentive to take their hands off the reins and let managers make pay and promotion decisions based on whatever criteria they choose.

This is a major loss for women, minorities, senior citizens, the disabled and any other group that tends to get the short end of the stick in the workplace -- and for any group of people that seeks to redress a legal violation through a class action. Now each individual will have to pay for legal representation alone and probably forego evidence of violations against similarly situated people.

Goliath won, and now it's every David for himself.


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