March 30, 2011 in Nation/World

Wal-Mart lawsuit splits court on gender lines

David G. Savage McClatchy

WASHINGTON – The Supreme Court justices, sharply divided along gender lines, appeared poised to reject a nationwide class-action lawsuit that accuses Wal-Mart of sex discrimination after an argument over class actions became a debate over what constitutes sex discrimination in today’s workplace.

The men and women in the black robes seemed to see the matter quite differently.

For the first time in its history, the high court has three women on the bench, and Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan asserted that a corporate policy of letting store managers decide on promotions could result in discrimination against women. The statistics strongly suggest that is what occurred, they said.

But led by Justices Anthony M. Kennedy and Antonin Scalia, most of the six men on the court questioned how Wal-Mart can be held liable for illegal sex bias, since its 3,400 store managers across the nation decide on who gets promoted and who receives pay raises.

“It’s not clear to me: What’s the unlawful policy that Wal-Mart has adopted?” Kennedy asked, since the company’s written policy calls for equal treatment without regard to race or sex.

A lawyer representing the female plaintiffs argued Wal-Mart has a “corporate culture” that teaches mostly male supervisors that women are less aggressive than men and therefore are less suited to being managers.

Unpersuaded, Scalia called that “an assessment of why the percentage (of women in management) is different,” but it is not evidence of an illegal policy. Wal-Mart does not say “don’t promote women,” he said. “If you have an aggressive woman, promote her,” he added.

Ginsburg, who made her legal reputation in sex-discrimination law, said Wal-Mart’s experience shows how “gender bias can creep” into the workplace. It isn’t “at all complicated,” she said. “Most people prefer themselves. And so a decision maker, all other things being equal, would prefer someone who looked like him,” she said.

The case heard Tuesday is the most important and far-reaching job-discrimination dispute to come before the high court in more than a decade. It could determine whether job-bias claims must proceed as individual lawsuits or instead as broad, class-action claims that rely mostly on statistics.

The Berkeley, Calif., lawyers who brought the sex-bias suit against the nation’s largest retailer say that while about two-thirds of its employees were women when the statistics were compiled five years ago, men were 86 percent of the store managers. They also said women were paid less across the country, even though they had more seniority on average than men.

At issue before the court was whether these findings would allow this single suit to proceed as a class-action claim on behalf of 1.6 million women who have worked for Wal-Mart since 1998. If so, it would be by far the largest job-bias case in American history.

But the tenor of Tuesday’s argument suggested the massive, decade-old suit may run aground before it can move toward a trial.

While the more conservative-leaning justices on the high court seemed the most hostile to the case, nearly all of its members appeared troubled by aspects of the litigation, ranging from concerns over how back pay would be awarded to class members to whether the company would be afforded an ample opportunity to defend itself against the accusations of discrimination.

A key, at least for what appeared to be a majority of justices, is whether Wal-Mart as a company had in place policies that encouraged supervisors to treat women employees differently from men. The company’s attorney, Theodore J. Boutrous of Los Angeles, argued the company instead took a strong stand against discrimination, and that any case of disparate pay or treatment was the product of rogue managers.

“They haven’t shown a pattern across the map,” Boutrous said.

Of the six men on the court, only Justice Stephen G. Breyer appeared inclined to vote in favor of the class action.

A ruling in Wal-Mart v. Dukes is not likely until June.

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