And you thought “too big to fail” banks were a problem.
Now, the US Supreme Court has created a new protected class: the “too big for justice” corporations.
The High Court on Monday rejected a massive job discrimination lawsuit against Wal-Mart Stores, Inc., on the grounds that the class-action status that could potentially involve hundreds of thousands of current and former female workers was too large.
In other words, because there is reason to believe that Walmart discriminated against hundreds of thousands of women, as opposed to just a few, the company cannot be held to account for any lawlessness.
That’s a big win for Walmart, and for other large firms that may not choose to treat employees fairly.
At the same time, it’s a big loss for working Americans—and especially for working women. This case, which began as Dukes v. Wal-Mart Stores, Inc., had the potential to be a groundbreaking gender-bias action. Its significance to working women cannot be underestimated; the women who sued, led by veteran Walmart employee Betty Dukes, argued that 1.6 million current and former female employees of Walmart employees were subject to discrimination—passed over for claimed promotions, tracked into lower-wage positions and generally paid less than male employees.
Individual women can still sue Walmart. But their options and opportunities will be limited by their isolation and economic circumstance. As Walmart Watch notes: Walmart Associates live on poverty-level wages and often do not have access to benefits. Walmart’s average sales associate makes $8.81 per hour, according to IBISWorld, an independent market research group. This translates to annual pay of $15,576, based upon Walmart’s full-time status of thirty-four hours per week, well below the poverty line for a family of four. Additionally in 2010, Walmart’s health insurance covered only 54 percent of their associates while tens of thousands of associates qualify for Medicaid and other publicly subsidized care.”
Even if individual suits succeed, the court’s ruling suggests that Walmart will not have to deal with the issues that would have been raised were it to end up on the losing end of a class-action suit.
When the Supreme Court says that the nation’s largest private employer cannot be taken to task for discriminating against its current former employees because that discrimination appears to have taken place on a massive scale, it is signaling that that the justices have made a ominous choice not just with regard to business but with regard to civil society and democracy. They will protect corporations before they protect workers and citizens.
Like last year’s Citizen’s United ruling, which freed corporations to spend as they choose to buy elections, this is another powerful indication that the courts cannot be counted on to maintain a level playing field—let alone enforce the law—when it comes to big business.