Court raises bar on job bias claims

WASHINGTON - Women and minorities who think they are underpaid will find it nearly impossible to band together to sue employers for discrimination under a Supreme Court ruling against 1.5 million female Wal-Mart employees in the most important job-bias case in a decade.

Only if there is proof a company has a policy of paying less to women or minorities can the employees get together in a class-action suit, the court said in an opinion Monday by Justice Antonin Scalia. Statistics showing that a company's women workers, in fact, earn far less and get fewer promotions than men will not suffice, the court said.

Columbia University law Prof. John Coffee said the Wal-Mart ruling all but sounds the death knell for class-action suits against employers that seek money. "This significantly changes the balance between employers and employees. And it largely eliminates the monetary threat facing big employers," he said.

Lawsuits are expensive to bring, "and if there is no money relief at the end of the road, there is no incentive to bring the suit," he said.

The Wal-Mart case has been seen as a key test of whether civil rights lawyers, armed with computer-generated data on wages, could force the nation's largest employer to stand trial and face billions of dollars in potential liability. Had the plaintiffs won against Wal-Mart, other similar suits against nationwide retailers were in the offing.

Amount of proof an issue

While the nine justices all agreed the employees had no right to group damages under the court rule they cited in their suit, that unanimity masked a fundamental split largely along gender lines over the extent of discrimination at Wal-Mart and the amount of proof required to proceed with a class action.

Pointing to a provision of the federal rules of civil procedure requiring a class action to have "questions of law or fact common to the class," Scalia said this suit does not get to first base.

He said Wal-Mart has 3,400 stores spread across the United States and leaves it up to store managers to decide on pay levels and promotions.

"In a company of Wal-Mart's size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction," Scalia said. "Significant proof that Wal-Mart operates under a general policy of discrimination is entirely absent here."

Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Samuel Alito agreed with Scalia in Wal-Mart vs. Dukes.

Scalia said this suit was flawed for another reason. A single class-action claim that supposedly speaks for a huge number of persons does not entitle all of them to "an individualized award of monetary damages."

'Little Janie Qs'

Ginsburg, who specialized in cases involving gender discrimination before joining the court, pointed to data obtained from Wal-Mart that painted a portrait of a "company culture" that was biased against them. For example, while women hold about 70 percent of the hourly jobs, they make up only 33 percent of management.

"The plaintiffs' evidence, including class members' tales of their own experiences, suggests that gender bias suffused Wal-Mart's company culture," Ginsburg wrote. "Among illustrations, senior management often refer to female associates as 'little Janie Qs,'" she said.

Giving male managers a free hand to make decisions on pay and promotions can, and apparently did, lead to discrimination, she said. "Managers, like all humankind, may be prey to the biases of which they are unaware," she wrote.

The decision did not absolve Wal-Mart of the allegations it had short-changed its female employees. Rather, the justices decided only that the suit did not fit within the rules for class-action claims. Individuals will still be free to file discrimination suits.