Everyone v. Everyone: The Era of the Class Action Lawsuit

The definition, or at least the current usage, of the word "discrimination" has become so blurred that it no longer resembles its original definition at all.  The vast majority of Americans seem to have internalized the ethic represented in the injunction "don't discriminate," in its literal, moral, and practical application.  But when the legal definition of "discrimination" becomes so vague that it can be applied to any act which inadvertently or indirectly leads to any undesirable outcome for anyone, we have a problem.

In recently-decided Wal-Mart v. Dukes, the plaintiffs' very argument contradicted itself, something that Antonin Scalia was happy to point out: "[This practice is] just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices."  The premise of the class-action lawsuit was that there was a commonality amongst the plaintiffs that justified their pursuing their grievances collectively, rather than individually.  The plaintiffs' argument was that the local managers were given too much discretion to make decisions about whom to promote, and whom to fire. 

If the process was decentralized, how could there have been systematic discrimination?  Justice Ginsberg, writing for the dissent, asserted that "Wal-Mart's delegation of discretion over pay and promotions is a policy uniform throughout all stores."  While she should be credited for her semantic gymnastics, having no one particular policy cannot plausibly be defined as "uniform," the prefix "uni" meaning "one."  The policy is different everywhere, therefore it is the same?  Simply Orwellian. 

So now delegating decisions to managers equals systematic discrimination.  Have we redefined the word that broadly?  If one more judge had joined Ginsberg, Sotomayor, Breyer, and Kagan, then the bar for class-action discrimination lawsuits would have been set quite low indeed.  As reported in The Telegraph: "Lawyers for the women said on Monday that the court's decision 'erects substantially higher barriers for women and men to vindicate rights to be free from employment discrimination.'"  But if the standards are currently this vague and indefinable, as many believe them to be, any redefinition which gives companies more tangible guidelines should be welcome.

Nelton Litchtenstein, professor of history at the University of California, has an interesting op-ed in the New York Times in which he criticizes Wal-Mart from a variety of angles.  Some of his criticisms have real merit.  The point is not that Wal-Mart is a perfect company which should be the model for every other business.  But on the theme of discrimination specifically, Litchenstein reports that Wal-Mart demands a lot of flexibility and mobility of its managers, often requiring that they relocate: "For young men in a hurry, that's an inconvenience; for middle-aged women caring for families, this corporate reassignment policy amounts to sex discrimination."  We have another definition: Requiring managers to relocate equals discrimination.

Courtney E. Martin of the Christian Science Monitor may not be an influential media figure, but her stance is representative of the stance taken by many disappointed by this ruling.  She complains: "...women make up over 65% of hourly employees at Wal-Mart, and only 34.5 percent of managers.  In other words, Wal-Mart, like so many other of America's biggest businesses - has a gender and leadership problem."  Alas, Mrs. Martin has a logic problem.  Disparity in results does not prove discrimination; even the plaintiffs' lawyer readily conceded this point to Scalia during the trial. 

Nonetheless, Ginsburg, who wrote the dissenting opinion, relied on the unequal representation of women in managerial positions as opposed to hourly-pay positions as the crux of her argument.  Hmmm...according to that reasoning, consider this: men are vastly underrepresented in elementary-school teaching positions.  Class-action lawsuit, anyone? 

Mrs. Martin, in a school-marm tone, scolds, "Mr. Scalia needs a lesson in 21st century discrimination," because we are no longer in a time when you would see a "whites only" sign above a water fountain, but rather that discrimination nowadays is more "insidious, covert, often subtle."  Indeed, it may be subtle.  A lot of things are subtle.  But the thing that our pesky justice system demands is evidence.  Corporations, like people, have the right to due process.  Furthermore, Mrs. Martin misunderstands the narrow implications of this ruling.  Justice Scalia wasn't necessarily asserting that no discrimination occurred at Wal-Mart, he ruled that it was not systematic and therefore did not meet the criteria necessary to be brought forward as a class-action lawsuit: "Because respondents provide no convincing proof of a company-wide discriminatory pay and promotion policy, we have concluded that they have not established the existence of any common question," he explained.  

The ruling was characterized by Wal-Mart lawyer Theodore J. Boutrous Jr and the US Chamber of Commerce as a victory for business in America.  Not a victory as in, "now we can continue to oppress women"; but a victory as in, "now we will not be bankrupt by frivolous lawsuits."  If we accept the new definition of "discrimination" as a phenomenon so subtle that it cannot be perceived through the ordinary senses, nor can it be substantiated in the form of evidence, we no longer have a credible justice system.  By a frighteningly slim majority, the Supreme Court has maintained that credibility.

[The title of this article, "Everyone v. Everyone," was brazenly stolen from a Southpark episode about sexual harassment lawsuits.]

The definition, or at least the current usage, of the word "discrimination" has become so blurred that it no longer resembles its original definition at all.  The vast majority of Americans seem to have internalized the ethic represented in the injunction "don't discriminate," in its literal, moral, and practical application.  But when the legal definition of "discrimination" becomes so vague that it can be applied to any act which inadvertently or indirectly leads to any undesirable outcome for anyone, we have a problem.

In recently-decided Wal-Mart v. Dukes, the plaintiffs' very argument contradicted itself, something that Antonin Scalia was happy to point out: "[This practice is] just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices."  The premise of the class-action lawsuit was that there was a commonality amongst the plaintiffs that justified their pursuing their grievances collectively, rather than individually.  The plaintiffs' argument was that the local managers were given too much discretion to make decisions about whom to promote, and whom to fire. 

If the process was decentralized, how could there have been systematic discrimination?  Justice Ginsberg, writing for the dissent, asserted that "Wal-Mart's delegation of discretion over pay and promotions is a policy uniform throughout all stores."  While she should be credited for her semantic gymnastics, having no one particular policy cannot plausibly be defined as "uniform," the prefix "uni" meaning "one."  The policy is different everywhere, therefore it is the same?  Simply Orwellian. 

So now delegating decisions to managers equals systematic discrimination.  Have we redefined the word that broadly?  If one more judge had joined Ginsberg, Sotomayor, Breyer, and Kagan, then the bar for class-action discrimination lawsuits would have been set quite low indeed.  As reported in The Telegraph: "Lawyers for the women said on Monday that the court's decision 'erects substantially higher barriers for women and men to vindicate rights to be free from employment discrimination.'"  But if the standards are currently this vague and indefinable, as many believe them to be, any redefinition which gives companies more tangible guidelines should be welcome.

Nelton Litchtenstein, professor of history at the University of California, has an interesting op-ed in the New York Times in which he criticizes Wal-Mart from a variety of angles.  Some of his criticisms have real merit.  The point is not that Wal-Mart is a perfect company which should be the model for every other business.  But on the theme of discrimination specifically, Litchenstein reports that Wal-Mart demands a lot of flexibility and mobility of its managers, often requiring that they relocate: "For young men in a hurry, that's an inconvenience; for middle-aged women caring for families, this corporate reassignment policy amounts to sex discrimination."  We have another definition: Requiring managers to relocate equals discrimination.

Courtney E. Martin of the Christian Science Monitor may not be an influential media figure, but her stance is representative of the stance taken by many disappointed by this ruling.  She complains: "...women make up over 65% of hourly employees at Wal-Mart, and only 34.5 percent of managers.  In other words, Wal-Mart, like so many other of America's biggest businesses - has a gender and leadership problem."  Alas, Mrs. Martin has a logic problem.  Disparity in results does not prove discrimination; even the plaintiffs' lawyer readily conceded this point to Scalia during the trial. 

Nonetheless, Ginsburg, who wrote the dissenting opinion, relied on the unequal representation of women in managerial positions as opposed to hourly-pay positions as the crux of her argument.  Hmmm...according to that reasoning, consider this: men are vastly underrepresented in elementary-school teaching positions.  Class-action lawsuit, anyone? 

Mrs. Martin, in a school-marm tone, scolds, "Mr. Scalia needs a lesson in 21st century discrimination," because we are no longer in a time when you would see a "whites only" sign above a water fountain, but rather that discrimination nowadays is more "insidious, covert, often subtle."  Indeed, it may be subtle.  A lot of things are subtle.  But the thing that our pesky justice system demands is evidence.  Corporations, like people, have the right to due process.  Furthermore, Mrs. Martin misunderstands the narrow implications of this ruling.  Justice Scalia wasn't necessarily asserting that no discrimination occurred at Wal-Mart, he ruled that it was not systematic and therefore did not meet the criteria necessary to be brought forward as a class-action lawsuit: "Because respondents provide no convincing proof of a company-wide discriminatory pay and promotion policy, we have concluded that they have not established the existence of any common question," he explained.  

The ruling was characterized by Wal-Mart lawyer Theodore J. Boutrous Jr and the US Chamber of Commerce as a victory for business in America.  Not a victory as in, "now we can continue to oppress women"; but a victory as in, "now we will not be bankrupt by frivolous lawsuits."  If we accept the new definition of "discrimination" as a phenomenon so subtle that it cannot be perceived through the ordinary senses, nor can it be substantiated in the form of evidence, we no longer have a credible justice system.  By a frighteningly slim majority, the Supreme Court has maintained that credibility.

[The title of this article, "Everyone v. Everyone," was brazenly stolen from a Southpark episode about sexual harassment lawsuits.]