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It doesn't exactly come as a surprise that Justice "Screw Women" Scalia doesn't think Wal-Mart discriminatory practices are, you know, discriminatory. We are, after all, talking about the same Justice Scalia who believes women have no Constitutional protection from discrimination:

Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that.

So yesterday's decision in Wal-Mart v. Dukes, authored by Scalia, is par for the course, especially for this pro-corporate court. Behemoth corporation versus little guy lady? Of course the Roberts court takes the "corporations are people too, and we shouldn't hurt their feelings" position.

Adam B explained the history of the case:

For almost a decade, a class action suit alleging consistent discrimination against Walmart's female employees has made its way up and down the federal courts, involving as many as 1.5 million present or former employees (it's now around a half-million in the suit, based on earlier rulings) alleging disparate treatment in pay and promotions stemming from Walmart's allowing its local managers excessive discretion in their hiring and promotions.

But Scalia and his fellow conservatives essentially concluded that any disparities in pay or promotions couldn't possibly be attributed to anything more than mere coincidence.

"Merely showing that Wal-Mart's policy of discretion has produced an overall sex-based disparity does not suffice."

Wal-Mart just happens to have an "overall sex-based disparity." But apparently, that's mere coincidence. There's no "significant proof" that Wal-Mart "operated under a general policy of discrimination." Why? Because Wal-Mart said so. No, really. That's the reason.

Wal-Mart’s announced policy forbids sex discrimination... and as the District Court recognized the company imposes penalties for denials of equal employment opportunity.

And besides, wouldn't Wal-Mart's managers naturally do the right thing?

To the contrary, left to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all.

Since Wal-Mart's stated policy is to prohibit discrimination in its hiring practices, "surely" all Wal-Mart employees follow that rule and always hire the very best person for the job, man or woman.

It's just a wacky coincidence that it's usually a man.

As Justice Ginsburg explained in her dissenting opinion (joined by the three other liberals on the court):

Women fill 70 percent of the hourly jobs in the retailer's stores but make up only "33 percent of management employees." ... "[T]he higher one looks in the organization the lower the percentage of women." ... The plaintiffs' "largely uncontested descriptive statistics" also show that women working in the company's stores "are paid less than men in every region" and "that the salary gap widens over time even for men and women hired into the same jobs at the same time."

So most of the jobs are held by women, but most of the management positions are held by men. And men just happen to make more money than women. But that's not discrimination. It's just a coincidence! Wal-Mart said so!

The plaintiffs' evidence, including class members' tales of their own experiences, suggests that gender bias suffused Wal-Mart's company culture. Among illustrations, senior management often refer to female associates as "little Janie Qs." ... One manager told an employee that "[m]en are here to make a career and women aren't." ... A committee of female Wal-Mart executives concluded that "[s]tereotypes limit the opportunities offered to women."

But according to the conservative corporatists on the court, that proves nothing. "Surely" those little Janie Qs just aren't as qualified as the men who just happen to make more money for the same job. That's not discrimination. It's just a coincidence!

All that evidence presented by statistician Dr. Richard Drogin and labor economist Dr. Marc Bendick? Insufficient.

After considering regional and national data, Drogin concluded that "there are statistically significant disparities between men and women at Wal-Mart . . .[and] these disparities . . . can be explained only by gender discrimination." … Bendick compared work-force data from Wal-Mart and competitive retailers and concluded that Wal-Mart "promotes a lower percentage of women than its competitors."

Apparently, Wal-Mart has a harder time than its competitors finding qualified women. But that proves nothing. It's just an unfortunate coincidence. Bummer.

So what does the president think about this unfortunate coincidence? Surely, he must be pissed about this ruling. After all, he hasn't hesitated to blast the court for siding with corporations in the past. And as he likes to remind us, he has daughters. And he wants them to grow up in a world of equal opportunities.

So naturally, in yesterday's White House press briefing, White House spokesman Jay Carney must have had quite an earful for the court. Right?

Q    So the administration is disappointed with the court's decision?

MR. CARNEY:  No, I didn't say that at all.  The lawyers are studying the decision now to determine what effects it might have.  I simply made the point that this -- that ending pay discrimination has been a key priority of this presidency from the beginning.

Q    Well, you can't -- the administration can't be satisfied.

MR. CARNEY:  Well, I don't have a legal analysis from the administration or the White House's point of view at this point because the lawyers are studying it.

Ah. OK. So the White House lawyers, who apparently hadn't heard of this landmark case until yesterday, need to review it before the president can decide whether this just might have been a disastrously bad, anti-woman decision from the court.

But at least there's this:

MR. CARNEY:  I can tell you this, that ending pay discrimination in the workplace is a key priority for the President. Signing the Lilly Ledbetter Fair Pay Act was one of his first acts as President and he has continued to call for additional legislation to equalize pay in the workplace.

As of today's press briefing, Carney still had no comment on the case, other than to say, again:

As I said yesterday, ending pay discrimination is a key priority for the President, and that is why signing the Lilly Ledbetter Fair Pay Act was one of his first acts.  It is also why he continues to call for new legislation.  In particular, the President has called for Congress to enact the Paycheck Fairness Act, which, as you may remember, the House passed over two years ago but the Senate did not, coming only two votes short of cloture.

So that legislation has been reintroduced, and we call on Congress -- we urge the House and the Senate to take action because we think it’s very important.

So a case that sets back fair pay for women requires some serious lawyerly study before the president can decide whether he's disappointed, but hey, lest we forget, he did sign the Lilly Ledbetter Act.

Here's the thing: if ending pay discrimination is a "key priority" for the president, he needs to take a strong stand against this ruling, just as he did with the Citizens United case, on the very day the court issued its ruling. He needs to make it clear to the country that these "coincidences" that just happen to favor men over women are unacceptable. And he needs to fight for legislation that helps strengthen fair pay for women, like the Paycheck Fairness Act, and not just by having his press secretary mention it in response to another question. Because the Lilly Ledbetter Act, which simply expanded the time women have to file a lawsuit for discriminatory practices, doesn't do much good if the courts can decide those discriminatory practices are actually just coincidence.

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Comment Preferences

  •  Shrugs... I can't wait for them to overturn... (4+ / 0-)

    Roe vs. Wade.

    Just a matter of time.

    •  Roe v. Wade isn't their only target. (4+ / 0-)

      It's Griswold.

    •  This was really silly (6+ / 0-)

      This case was not about pay equality.

      It was about what the exact criteria are for how similar the circumstances of plaintiffs must be in order to aggregate many cases into a single class action.

      This is not automatically a left vs right issue - a class action can be against a company but it can also be land owners against the EPA fighting wetlands regulations.

      Anyway, this case was a slam dunk - it was not just the conservative justices, it was a unanimous opinion.

      That's pretty rare - most cases that get to the Supreme Court are real controversies that senior jurists have serious disagreements about.

      So this level of outrage over a decision that united every justive from the most conservative to the most liberal is really silly.

      •  Well said. (4+ / 0-)

        I'm as liberal as most folks on here, and God knows I'm in favor of equal pay, but this was a case on whether sufficient commonality existed across ALL WalMart stores to process possible discrimination claims as a nationwide class action.  Since there's no single policy, the civil rules don't support certification as a class action.  The individual stores are run differently, by different people.

        This case doesn't prevent women from bringing discrimination claims.  It doesn't even prevent a smaller class of women who were victimized by the same  management from bringing a class action for discrimination.  

        By the way, I'm NOT taking up for Scalia, who sprinkles crappy dicta all over everything he writes.  But even Ginsberg would not certify this class.  This decision was 9-0.

  •  Carney needs to get back on the bus. (3+ / 0-)
    Recommended by:
    rfall, decembersue, Betty Pinson

    The majority decision undercuts not only pay discrimination, but it goes to the heart of many other class action suits.   This decision is not just about pay discrimination, but also about whether we will have a mass torts system in this country.

    One of the painful things about our time is that those who feel certainty are stupid, and those with any imagination and understanding are filled with doubt and indecision -- Bertrand Russell

    by Its the Supreme Court Stupid on Tue Jun 21, 2011 at 05:16:20 PM PDT

  •  Discrimination is Like Christianity (1+ / 0-)
    Recommended by:
    Betty Pinson

    If you don't confess it, you're not doing it.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Tue Jun 21, 2011 at 05:16:44 PM PDT

  •  I wrote a letter to Walmart and I hope anyone (1+ / 0-)
    Recommended by:
    Betty Pinson

    else who finds Walmart's discriminatory policies unacceptable does the same.  I can get along well enough without shopping there.  I may write to Tramontina, as well.

    "The worst that can happen to any group of people working to unseat an existing power base is their failure to imagine the lengths to which those in power will go to keep it." Cognitive Dissonance at Zero Hedge

    by CarolinNJ on Tue Jun 21, 2011 at 05:17:43 PM PDT

  •  I have little faith left in the US institutions (6+ / 0-)

    Corporate power and personhood is far more important than actual people in this country.  The institutions are in place that make that a permanent condition.  

  •  What Perfect World™ does SCOTUS live in? (12+ / 0-)
    To the contrary, left to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination
    would select sex-neutral, performance-based criteria
    for hiring and promotion that produce no actionable disparity at all.

    This is the most juvenile, naive view of the world I've encountered in a long time.  And from "wise judges" who should have the experience to know better.

    This is the closest to a Teabagger's dream I've seen--this childish belief in the infallibility of the market.

    "Ridicule is the only weapon which can be used against unintelligible propositions." - Thomas Jefferson

    by rfall on Tue Jun 21, 2011 at 05:21:16 PM PDT

    •  juvenile, naive view of the world (2+ / 0-)

      or Senile in Scalia's case

      We agree our hair is on fire, we disagree with Paul Ryan's plan to use a sledgehammer to put out the fire

      by JML9999 on Tue Jun 21, 2011 at 05:22:17 PM PDT

      [ Parent ]

    •  Why have laws at all? (3+ / 0-)
      Recommended by:
      sethtriggs, rfall, fhcec

      Left to our own devices, we'll surely all do the right thing......right?

      That god you been prayin’ to is gonna give ya back what you’re wishin’ on someone else.

      by Coss on Tue Jun 21, 2011 at 05:45:30 PM PDT

      [ Parent ]

    •  My thoughts exactly (2+ / 0-)
      Recommended by:
      sethtriggs, rfall

      when I read that same passage. You know, if the Warren Court had also had their heads THAT far up THEIR asses, they never would have ruled in Brown v Board of Education that separate but equal was DE FACTO inequality, because they could have pointed to the separate but equal rule and said, "See? The rule REQUIRES that everything be equal, therefore, in real ife, it IS equal."

      The conservatives on this court are depressingly backward and corrupt.  

    •  Why is this naive? (0+ / 0-)

      As a shareholder of a corporation, wouldn't you want your executives to run the enterprise as efficiently as possible?  Wouldn't THEY want to run it as efficiently as possible, so as to get the big fat bonuses?  (BTW, the only good reason for big bonuses!)

      Like I said earlier, corporations should not have to suffer simply because women as a group or more timid.  In a strange twisted way, if women are more easily pacified, then they become more valuable, opening up more opportunities.

      Feminists and female empowers, etc., should encourage women to be more bold in asking for raises and promotions.  Of course, women, being the sex more suited to security, are going to be less likely to take the chances that are needed to gain better pay.  Evolution has been around a lot longer than the women's movement!

      •  I've never seen such bullshit outside of a (0+ / 0-)


        Like I said earlier, corporations should not have to suffer simply because women as a group or [sic] more timid.  In a strange twisted way, if women are more easily pacified, then they become more valuable, opening up more opportunities.

        There's a simple answer to this:  because humans, even those at the tops of corporations, are less than perfect, and fall prey to their biases and to societal pressures.

        Being a CEO doesn't make one immune to stupid decisions, as seen by each day's news on the financial pages.  And I've directly experienced it, being both a shareholder and an executive at the board level with a number of companies.

        If your theory were correct, blacks would not have been discriminated against in hiring in days past (or still) because to do so would have been less than perfectly efficient.

        Your view, BTW, is not only naive in general, but sexist in particular:

        Of course, women, being the sex more suited to security, are going to be less likely to take the chances that are needed to gain better pay.

        Your sure you didn't mistype a URL and end up here rather than over at Redstate?

        "Ridicule is the only weapon which can be used against unintelligible propositions." - Thomas Jefferson

        by rfall on Tue Jun 21, 2011 at 06:50:22 PM PDT

        [ Parent ]

  •  Hmm and how many nano seconds did it take (1+ / 0-)
    Recommended by:
    Betty Pinson

    for them to drop a building on that NSA guy and other whistleblowers.

    We agree our hair is on fire, we disagree with Paul Ryan's plan to use a sledgehammer to put out the fire

    by JML9999 on Tue Jun 21, 2011 at 05:21:26 PM PDT

  •  I almost want to un-boycott them for a day (3+ / 0-)

    buy something cheap, and then I can say I'm boycotting them anew. But I can't bring myself to do it.

  •  asdf (2+ / 0-)
    Recommended by:
    Lefty Coaster, Betty Pinson

    Gee - one would think that a former Constitutional law professor and Editor of the Harvard Law Review would not need a bunch of 'lawyers' to study a decision before one pronounced ones opinion of it.

    But this is apparently part of Obama's newfound judicial amnesia - since he came out in favor os state's rights in determining whether gays should be allowed to marry. Apparently he also is having second thoughts on Loving vs. State of Virginia as well!!!!!

    The Democratic Party. Never has so much been squandered so quickly for so little.

    by GayIthacan on Tue Jun 21, 2011 at 05:24:05 PM PDT

    •  what has Obama got to do with this? (5+ / 0-)

      May the road rise up to meet you. May the wind be always at your back.

      by GlowNZ on Tue Jun 21, 2011 at 05:27:17 PM PDT

      [ Parent ]

      •  asdf (4+ / 0-)

        Um - what does Obama have to do with the President's opinion of the WAL MART decision?

        Um - I'd explain it to you, but I'd have to revert to 3rd grade logic to do so  most people seeing the connection between the President and the President's legal opinions without having to be hand-led. :D

        Or is someone other than Obama in charge of Obama's opinions?

        The Democratic Party. Never has so much been squandered so quickly for so little.

        by GayIthacan on Tue Jun 21, 2011 at 05:34:44 PM PDT

        [ Parent ]

      •  well i agree with the earlier statement (1+ / 0-)
        Recommended by:
        On The Bus

        that this article paints the reasons the justices came to their (unanimous) decision in a misleading fashion. it focuses on how Wal Mart doesn't get any licks for it's obviously discriminatory policy, instead of the real reason the judges made the ruling. the reason for this is because the judges couldn't exactly rule for all the people in the class-action suit not knowing all the individual facts of all the separate cases in separate stores with separate managers. still, that reasoning sound flimsy, and does nothing to address the problem that was brought up, just dismisses it on technical grounds.

        What has Obama got to do with this? he's the President. the President can have an opinion on Supreme Court decisions, especially one that occurs on his watch. such an opinion is one way the president can influence public discourse. it's one of the basic ways the President exercises his power over attitudes in this country, something that Obama fails at  pretty much every time, instead shying away for fear of actually looking like a leftist. even his truest supporters know that that's just bad. when he has his press people say "the lawyers are still looking at it" any more than a day later it sounds to me like the Obama administration is saying "this is clearly a divisive case to the public and we don't wanna touch it yet because we obviously side with the judges and it's too soon. please stop asking us about this in a week and we'll never have to comment" afraid of scaring off a few fickle "moderate voters" constantly teetering on the fence? that's pretty pathetic. i would think that any self-respecting Dem President would at least come out and say "yeah they're technically correct in their ruling, but Wal Mart's policy is still bullshit."

        or is that too much to ask as a progressive

        •  two important statements - (0+ / 0-)

          neither one trivial.

          one a comment on this case to have his say on it, and recommend directions to right the wrong of discrimination.

          second, the statement on AFghanistan - which is surely not trivial, and we know he's been working on it until the last moment.

          We know he prefers well spoken and thoughtful to rushed. No surprise that he's following the same path.

          "There's nothing serious about a plan that claims to reduce the deficit by spending a trillion dollars on tax cuts for millionaires and billionaires." - President Obama

          by fhcec on Tue Jun 21, 2011 at 10:03:38 PM PDT

          [ Parent ]

          •  shit, i accidentall clicked parent (0+ / 0-)

            hope that doesn't do anything bad. i didn't mean it!

            but also, there is no comparison to this ruling and a decision about Afghanistan. it doesn't take more than an afternoon's worth of thought for lawyers to see how this is going to affect things. it will make it harder for class-action lawsuits to get going, which are one of the primary weapons being used on corporations. ta-da

      •  Sigh (1+ / 0-)
        Recommended by:
        Matt Z
        what has Obama got to do with this?

        When you hate Obama this much, and apparently you'd prefer a Huntsman or Romney presidency that much, it doesn't matter what anything has to do with anything.

        Fukushima Disaster - Why didn't Obama stop it!
        Anthony Weiner Sexting Scandal - Obama should have seen this coming months ago and warned Weiner off
        Albert Pujols injury wrecked your fantasy team - Why didn't Obama warn me not to draft him!

        When we stop putting leaders from the past up on pedestals and ignoring their flaws, we can start seeing our present leaders for what they really are.

        by PhillyJeff on Wed Jun 22, 2011 at 02:00:21 AM PDT

        [ Parent ]

    •  Uh...what? (1+ / 0-)
      Recommended by:

      Apparently he also is having second thoughts on Loving vs. State of Virginia as well!!!!!

      As we say on wikipedia, "Citation needed".

      •  asdf (0+ / 0-)

        The Democratic Party. Never has so much been squandered so quickly for so little.

        by GayIthacan on Tue Jun 21, 2011 at 05:32:37 PM PDT

        [ Parent ]

        •  From the article you posted (1+ / 0-)
          Recommended by:
          Matt Z
          Obama is reportedly looking for politically comfortable ways to take a more open stance on same-sex marriage.

          But never mind the fact that he already got DADT on its way to being repealed and DOMA not being defended in courts. Never mind all the other things he's done for LGBT rights including hospital visitation and pushing the UN resolution etc.

          Never mind all of that. Either he comes out tomorrow and says he's for full marriage equality or he might as well be Rick Santorum right?

          It seems pretty clear to me that he's trying to find a way to support marriage equality or move it along without sounding like a flip-flopper and without doing what he perceives will turn off voters. I don't believe it would, but apparently he does.

          He's gone so much further for LGBT rights than any president in history, including much beloved Clinton who fought for DOMA and DADT in the first place.

          I wish we could stop attacking him on every issue and see what he's actually going to do, given that he's already succeeded or almost succeeded in getting rid of DOMA and DADT.

          When we stop putting leaders from the past up on pedestals and ignoring their flaws, we can start seeing our present leaders for what they really are.

          by PhillyJeff on Wed Jun 22, 2011 at 02:05:34 AM PDT

          [ Parent ]

  •  Crazy thought/idea... (2+ / 0-)
    Recommended by:
    Lightbulb, Heart of the Rockies

    Can the plaintiffs incorporate and have "their corporation" sue on behalf of "the shareholders?" laughing...I'm just "typing-out-loud"...

    •  Marjmar - short answer NO (0+ / 0-)

      If the plaintiffs formed a corporation now how would it have any damages? The benefit of a corporation is the shield it provides to the shareholders, rather than a way to gather together to litigate past wrongs.

      "let's talk about that"

      by VClib on Tue Jun 21, 2011 at 10:35:16 PM PDT

      [ Parent ]

      •  I apologize for the delayed acknowledgement. (1+ / 0-)
        Recommended by:

        Some severe weather came through and we were without power for a couple days.

        I do understand your rhetorical, after your stating the obvious, and thank you.

    •  what corporate personhood actually means (0+ / 0-)

      is that a corporation is deemed a separate legal entity from any person, including its shareholders, officers and directors. Which means that if a bunch of employees of Wal-Mart were to form a corporation, that corporation would not even have standing to sue for employment discrimination, because the corporation, a separate legal entity from its owners, was never employed by Wal-Mart.

      •  Apologies for not acknowledging your reply sooner. (0+ / 0-)

        We were without power for a couple days due to very bad, no good rotten weather.

        Thank you for the clear and concise reply.  As I said...I was just "typing-out-loud"...but a moments worth of serious thought would have been better and the elements both you and VClib posed would have seemed more apparent if not entirely clear.  Thank you.

  •  Very disappointing in many regards. (2+ / 0-)
    Recommended by:
    Lightbulb, xxdr zombiexx

    I have not boycotted Walmart in the past, but limited my shopping there. Because of where I live, there sometimes are not good alternatives. But this morning I chose a different store, even though Walmart would have been cheaper and had more choices of product for me.  NO MORE WALMART.

    I woke up this morning only to realize, it's opposite day again.

    by Melanie in IA on Tue Jun 21, 2011 at 05:32:19 PM PDT

  •  They're funny. (5+ / 0-)

    To the contrary, left to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all.


    Talk about being out of touch with reality. At my workplace, people are judged on random stuff that have no relation to the their performance or work whatsoever.

    One Dude at my place was reprimanded in his performance review for his low performance in 2008. But he wasn't even hired til 2009.

  •  It's like a 3rd rate novel (1+ / 0-)
    Recommended by:

    in that at one level you had to see it coming but you tell yourself "nah, it can't go that way, that's so cynical".

    Then boom.

    There it is, all sleazy and predictable and ugly.

    Expressed at one of the highest levels of our governmental system.

    it would seem to reinforce a notion that there's a class war being waged against us and it includes this seeming agenda of controlling women and keeping them in a box.

    It's clearly a conservative value and, again, supports my theory of moral retardation, which seeks to explain why otherwise intelligent people can be so small-minded, controlling , obtuse, mean-spirited and backwards.

    And that's why they get called the American Taliban™.

  •  People of America, incorporate! (1+ / 0-)
    Recommended by:
    Heart of the Rockies

    You have nothing to lose but your your second-class status.

  •  Shocked? (0+ / 0-)

    Are we honestly shocked that this court would rule in Wal-Mart's favor?

    Maybe every woman who is employed by this sweat-shop supporting conglomerate will quit! Now that would be refreshing!

    It's quite a fucking shame that women are still not looked at as equal to hundred years later. I've seen my mother do things that some men couldn't do!

    Whenever I hear a Republican call me a feminist supporter, I stand up and say, "You damn right and I'm proud to be!"

  •  When will there be protections for short men? (0+ / 0-)

    Because I don't think one form of discrimination is less appalling than another.

  •  This is not a very good diary. (7+ / 0-)

    You're mixing up two things: the results of the decision with the legal justification of the decision, and getting angry with the administration for not having a ready-made response to the first while they're ostensibly analyzing the second.

    This is not Citizen's United, a straightforward and clear-cut ruling that's easy to explain - and yet people on this site consistently misrepresent it anyway.  So far no one has a clear sense of what the new contours will be for class-action suits in the future, other than that they'll be harder to justify, especially against certain types of corporations.  A bad decision to be sure, but a complicated one whose remedies and eventual impact aren't quite so clear (see e.g. Seneca Doane's diary yesterday.)  I'm not going to rag the administration for not having an immediate response to something this murky.  

    Saint, n. A dead sinner revised and edited. - Ambrose Bierce

    by pico on Tue Jun 21, 2011 at 05:58:52 PM PDT

  •  Should the fact that men are more bold in asking (0+ / 0-)

    for raises and promotions (and therefore getting them) be considered a form of discrimination against women?  Call me a male chauvanist pig or whatever, but the sexual dialectic has left men as more willing to engage in risky behavior and be more desirous of gaining resources - exactly the type of behavior that gets employees to get raises.

    It comes back to the ides of whether equality of opportunity or equality of outcome is more important.  I say that trying to achieve equality of outcome is better served by general public iniatives like welfare spending, free medical care, jobs programs, etc., all paid for by progressive tax rates that approach confiscatory levels for the obscene rich - rather than by micromanaging the private workplace.

    If there is one thing I believe about the modern corporation is that is a one-dimensional eceonomic Great White shark whose only motivation in life is to enhance the value of the shareholders.  Discrimination that hurts the bottom line is not tolerated for the simple fact that it ... hurts the bottom line!  Every employer makes a calculated decision on employee pay and promotion that is designed to pay the employees as little as possible without having worker morale and retention impact the bottom line enough so as to have a net detrimental effect (i.e., it's an extremal point on one of those curves that are part of labor economic theory.)

  •  The three scariest words (0+ / 0-)

    in America: Justice Anthony Kennedy.

  •  To be fair... (2+ / 0-)
    Recommended by:
    Jim M, VClib
    Scalia doesn't think Wal-Mart discriminatory practices are, you know, discriminatory.

    He probably does in fact think that their policies aren't discriminatory.  But that's not what the decision held - the decision held that a class action involving so many women in so many different circumstance would violate "commonality" - that the class is too diffuse and in too many different circumstances to be certified.  I didn't read all of the facts of the case although I do tend to think that, in the context of a corporate-created hostile work environment, it's probably plausible that they could've proved commonality.  Still, just for the sake of accuracy, the ruling wasn't about whether the policies were discriminatory, it was about whether the case should be certified as a class action.

    I know you highlight that later in the diary, but I suppose I might try to clarify that first paragraph, knowing that a lot of folks probably won't read the whole thing.

    Secondly, I think it's totally reasonable that Carney didn't go into depth.  In terms of the effect of the decision on class actions, it is complex - it didn't really set down a hard and fast rule as for when a class becomes too large and too situationally dispersed for commonality to be lost.

    At the end of the day, the legal effect of this case is around class actions, which have been under attack for awhile, with the pay disparity issue simply being the means by which the Court again eviscerated class actions.

    "What Washington needs is adult supervision" - Barack Obama

    by auron renouille on Tue Jun 21, 2011 at 06:46:43 PM PDT

  •  I would have liked a typo above. Yet, maybe not i. (0+ / 0-)

    "Misfortune shows those who are not really friends." Aristotle Fuldheim's long and distinguished career - where, at age 91, .,,,. suffered a stroke on July 27, 1984, shortly after interviewing U.S. President Ronald Reagan via satellite.

    by JugOPunch on Tue Jun 21, 2011 at 07:17:32 PM PDT

  •  These guys would have ruled that... (0+ / 0-)

    ...the housing discrimination cases that were prominent during urban "white flight" were simply the coincidence of hundreds of thousands of unrelated, isolated incidents.

    The so-called "rising tide" is lifting only yachts.

    by Egalitare on Tue Jun 21, 2011 at 07:17:57 PM PDT

  •  I have a penis. I know I am paid more. (0+ / 0-)

    "Misfortune shows those who are not really friends." Aristotle Fuldheim's long and distinguished career - where, at age 91, .,,,. suffered a stroke on July 27, 1984, shortly after interviewing U.S. President Ronald Reagan via satellite.

    by JugOPunch on Tue Jun 21, 2011 at 07:35:05 PM PDT

  •  Now We Know the Pecking Order: (0+ / 0-)

    #Numero Uno: Rich white men; preferably old money.

    2. White male members of  congress.

    3. Rich white women.

    4. White men of marginal means.

    5. Everybody else.

    the farther you are from Numero Uno, the less rights you have.

    "I don't feel the change yet". Velma Hart

    by Superpole on Tue Jun 21, 2011 at 07:41:16 PM PDT

  •  Making her bones (4+ / 0-)

    attacking the President for something the Supreme Court did. Got to keep the flow going, eh? Maybe try something constructive. Like reading Seneca Doane's diary yesterday. It turns out it is complicated, it's not about wage discrimination, and class action lawsuits are really as much about protecting the defendant as the plaintiff. So the Supremes probably just gave Walmart a good screwing, and the diarist is howling about Obama's part in it? And what part in it did he have? It seems that Mr. Carney understands the issues better and has a much leveler head than does the diarist.

    If the diarist wished cases like this to be decided differently, then she should bend all her energies into making sure that Democrats occupy the White House for the next three terms. It is all about the Court. Obama is a vehicle to get more reasonable justices appointed.

    Look, progressive legislation will not pass this Congress. None of it. Nada. Calling for Obama to "fight" to get it passed is silly. Not going to happen and especially not going to happen if Obama "fights" for it. Diarist apparently hasn't noticed that the Republicans wouldn't vote for their own policies if Obama proposed them. As he has, duh.

    Diarist just wants the President to look weak in front of you all, not to get anything accomplished, like the Lily Ledbetter Act. The diarist's final sentence is a particularly egregious red herring. The court did not decide that these practices were not discriminatory.

    Corruption is what keeps us safe and warm. Corruption is why we win. -Syriana

    by CarbonFiberBoy on Tue Jun 21, 2011 at 08:09:09 PM PDT

    •  Diarist is also forgetting the fact that (0+ / 0-)

      it was a unanimous decision. ALL OF THE SUPREMES voted this way.

      Unless you think Ruth Bader Ginsberg is a corporate teabagging republican hack.

      When we stop putting leaders from the past up on pedestals and ignoring their flaws, we can start seeing our present leaders for what they really are.

      by PhillyJeff on Wed Jun 22, 2011 at 02:07:40 AM PDT

      [ Parent ]

  •  you might be looking at this case too narrowly (1+ / 0-)
    Recommended by:

    It is true that this particular case concerns only sex discrimination, but the issue before the Supreme Court was not really sex discrimination at all. It was defining the degree of commonality of claims that is necessary to certify a class action. That sounds like a dry academic question, but it actually has very broad application. This decision must be seen in the context of a pattern of other cases restricting the use of class actions, and the result of this decision is not confined to sex discrimination cases at all. This case will make it harder to certify claims of bank customers against their banks, or consumers claiming false advertising, or injured parties against drug companies or polluters, etc., etc.

    But there is nothing in your post about the issue of defining commonality in class actions, and that was in fact ALL this case was about. Yes it will force this particular sex discrimination case to be splintered into a large number of individual claims, but to view the Supreme Court's ruling solely through the prism of sex discrimination is to miss its much broader implications. And that is why it is entirely appropriate for the President's legal team to take their time studying the decision before coming up with suggestions as to how Congress might amend the Federal Rules of Civil Procedure, or adopt other legislation to deal with a wave of cases by the Supreme Court that are restricting the use of the class action device.

  •  Not sure what's wrong with this decision (1+ / 0-)
    Recommended by:

    I tend to be supportive of these kinds of claims, but in this instance it just seemed like way too many claims to lump together in one lawsuit.   If the case went forward and was won, you'd end up with too many women who weren't discriminated against getting a huge payday.

    Unfortunately you have a situation where the statistics say that there likely was discrimination, but you can't really say that in any specific case that someone was discriminated against.

    Many are saying that you can't really bring individual cases for all of the women that are part of this class.  Good, not all of the women in the class were discriminated against.    What should have happened is the ones with strong cases should've have sued individually on the merits of her own case.

    There are places where class action lawsuits belong, I just don't think this is one of them.

    •  This case was just too damn big (1+ / 0-)
      Recommended by:

      would be one valid way of looking at this decision. But the decision was not really written that way. And as I understand it, there was a plan for litigating this case which would have involved trying a representative sample of claims, and then extrapolating those results to the entire class. And then you would, if the plaintiffs won, end up with a big pot of money that you would have to find a way to distribute fairly. The right way to do that at that stage would be to have individual hearings to establish each class members' entitlement to share in the recovery. But what usually ends up happening instead is that there is a settlement, and the money ends up getting distributed according to some formula that would probably take into account seniority and position and pay, etc. So you're right that the result might be that people who were not discriminated against might participate in the recovery, but that can happen whenever there is a settlement of any class action, no matter how small or how large.

      •  True, but (2+ / 0-)
        Recommended by:
        VClib, auron renouille

        in this case we don't have a real commonality among the class other than they all have girl body parts and work or worked for WalMart.   A class for a drug that turns out to cause cancer, everyone who took the drug is at increased statistical risk of cancer because of it.  

        In this case, there are people in it who were discriminated against and people who weren't.   And even among those who were, we have different facts in each case.  

        I do find with interest that 70% of the employees of WalMart are women.   I wonder what the applications show as the percentage who apply.    If there is discrimination because of stereotypes, I wonder if women benefit from this because managers look at women as being better with customers.

  •  Scalia said, Scalia said...but was unanimous (0+ / 0-)

    All 9 Justices agreed on the outcome of the case.

    Framing the case as Scalia hates women and conservatives love corporations doesn't change the reality that this case was not even a close call. It was a technical matter of class-action lawsuit and the liberals agreed it could not be authorized.

  •  The ROBERTS (0+ / 0-)

    The ROBERTS Supream COURT is the MOST CROUPT  Supream Court that we have had in the last SEVENITY FIVE YEARS, ROBERTS AND HIS UN-HOLEY FOUR(4) are bought and paid for by the MEGA CORPORATIONS, Face facts the WORKING man or woman is SCREWED, get use to it.

  •  Confusing Class Certification With Merits of Claim (0+ / 0-)

    Kelli Joy, enjoyed your grilling of Dan Pfeiffer at NetRoots.  Was in the audience and could feel the chill going down Dan's spine as you roasted him.

    However, I beg to differ on Dukes v. Wal-Mart.  You are confusing the issue of class certification with the issue of whether women have a claim against Wal-Mart for pay discrimination.  All 9 judges unanimously agreed that the case should not have been certified as a class under Rule 23(b)(2).  Because Wal-Mart's pay and promotion decisions have been decentralized to the individual store level, managers at those stores (both male and female) make these decisions.  Trying to decide in one case the claims of 1.5 million workers when there are 3,400 individual stores is impossible to do in the aggregate. Under Scalia's logic, class actions could be brought on a store-by-store basis, perhaps even on a region-by-region basis (there are 41 regions) with respect to promotion to store manager.  Without a central, overarching scheme causing the pay differential, there was however no way that the individual claims could be decided collectively.

    Litigation by proxy has its down size.  Had this case been certified, it would no doubt have been settled as trying it would have been a nightmare.  Like a lot of global class action settlements, the class lawyers would have ended up with hundreds of millions of dollars and the women with coupons redeemable at Wal-Mart stores.

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