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.
The ruling should, as well, offer a reminder that the best protection for working people is found not before the bench or in the legislative chamber but in organizing efforts such as the new “OUR Walmart” campaign by company “associates” (employees) and the drives by unions such as those of the United Food and Commercial Workers.
UFCW filed a terrific amicus brief in the Dukes v. Wal-Mart Stores, Inc., sex discrimination case.
That brief argued that “Walmart is not too big for justice.”
The Supreme Court seems to think it is.
But the UFCW brief reminds those who actually care about justice—and about the application of the rule of law to all—that the court is wrong.
“For more than forty-five years, American workers have sought protection from the courts for equal treatment in the workplace. Workers have joined together to remedy widespread discriminatory workplace practices through class action proceedings and by applying the nation’s civil rights standards to their workplaces. Today, Walmart is attempting to undo that standard by claiming its female associates have no right to appeal for justice as a class,” the UFCW explained.
“In our amicus brief to the US Supreme Court, we ask the court to uphold the fundamental pillar of the Civil Rights Act and to ensure that the class action process remains open to workers in all industries. Walmart is not too big for justice. No employer should be beyond justice for its workers. Workers must have a voice in the legal process. The cost to Walmart if it loses the suit would be a fair recompensation for billions of dollars in lost wages and benefits owed to female employees who have lost opportunities as a result of Walmart’s discriminatory actions.
“With more than 1.4 million associates nationwide, Walmart has single-handedly transformed the American economy by setting workplace standards by which all other retailers and employers are forced to compete. Because Walmart’s employment practices are so influential, its female associates must be allowed to have their day in court. We congratulate the brave women who initiated this complaint and who seek to create a Walmart workplace that treats all associates equally.”
Wal-Mart and its High Court associates are wrong.
The union is right.
No company should ever be too “Too Big for Justice.”