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.