Yesterday, the Supreme Court came down with a 5-4 decision in Wal-Mart v. Betty Dukes, perhaps unsurprisingly in favor of Wal-Mart. Betty Dukes and 1.5 million other women who have worked at Wal-Mart since 1998 brought a class action lawsuit against the corporation based on the grounds that they were being discriminated against based on their gender. In their view, women at Wal-Mart were less likely to be promoted and were paid less than men for the same positions.
Now, equal pay for equal work is not new news. Today, women in the U.S. make 77 cents for the dollar a man makes. Last year, the Paycheck Fairness Act failed in the Senate by the two votes needed to withstand a filibuster. This battle is clearly on going on many fronts, but as Wal-Mart is the nation’s largest employer, it plays a particularly pivotal role. What I found most distressing is that the Court essentially gave Wal-Mart a waiver because they had a formal policy on the books against gender discrimination. Essentially, if the policy is there, the corporation cannot be held accountable for what middle management in far away places is doing, even if it is reoccurring pattern.
Now, I’m not a lawyer but as someone who worked on a Supreme Court case with the primary duty of bringing diet coke to my boss who delivered an oral argument, I can tell you this looks like a loophole in the making. It really reminds me of the idea of “too big to fail.” It’s as if it’s “too big to control.”
Strangely enough, the decision has almost nothing to do with discrimination. The case became a vehicle for deciphering the details of class action law, and how to classify these 1.5 million women. The classification made was apparently incorrect in the eyes of the Court. Even the almighty Ginsburg concedes this.
What Ginsburg highlights though is the lack of mention of discrimination in the majority opinion, the failure of the Court to give so much as a sentence of “credence” to this original issue. Instead the court goes into the minutiae of Rule 23(b)(3). This I leave to the lawyers to contend with.
The one legal issue from the decision that I do want to address is commonality. Commonality is defined as, “the existence of a class of persons who have suffered the same injury.” There are legal semantics here, which to be clear I am not examining, but the idea of women as a whole being defined by this conception of suffering common injury is extremely compelling.
As someone who thinks a lot about the meaning of gender, and if it even truly exists, it is often difficult to put a finger on what makes a woman a woman. And this conception of shared injury may very well be it. If gender is a social construction, it is what society makes of a woman that makes her one. So in essence the discrimination one faces based on her presentation as a woman, makes her a woman. Not to say that discrimination itself is essential to womanhood. I have high hopes for society changing and defining women through virtues and equality. When this will happen I can’t be sure, but even on a day like today I believe it. If only because the woman who started the ACLU women’s rights project is sitting on that bench telling Scalia what’s up.