Belle of Liberty

Letting Freedom Ring

Monday, June 20, 2011

It Is Wal-Mart, Hear It Roar

The Women of Wal-Mart thought they had too many women to ignore – 1.6 million, to be exact. But today, the U.S. Supreme Court decided they just had too many numbers to file a class-action lawsuit against the Wal-Mart chain, the largest employee class-action lawsuit in U .S. history.

According to Fox News, the court agreed unanimously that the litigation could not proceed as a class action in its current form, reversed a decision by the 9th U.S. Circuit Court of Appeals in San Francisco. The jurists were split along 5-4 lines over whether the group presented a common claim. Justice Anton Scalia called the lawsuit “one of the most expansive class actions ever” to have been given the go-ahead by lower courts.

Plaintiffs “wish to sue about literally millions of employment decisions at once,” Scalia wrote. “Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer the crucial question, ‘why I was disfavored.’”

Had the plaintiffs won, the suit would have cost Wal-Mart potentially billions of dollars in damages. A similar case, based on racial discrimination, put oil giant Texaco out of business.

“The court’s ruling erects substantially higher barriers for working men and women to vindicate rights to be free from employment discrimination,” the plaintiffs said in a statement after the decision. Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee suggested that the ruling shows that “an activist majority of the Supreme Court is making it more and more difficult for any American to have their day in court.

“Over the past two years,” he claimed, “the American people have grown frustrated with the notion that some corporations are too big to fail. Today’s decision will undoubtedly make some wonder whether the Supreme Court has now decided that some corporations are too big to be held accountable.”

The case started a decade ago when Betty Dukes said the management at the Pittsburg, Calif., Wal-Mart store where she worked was bypassing her for promotions. “I could see the men going forth and the women in the store stayed in the basic positions they were always in,” Dukes once told an interviewer.

Dukes’ discrimination claims were folded into a class-action lawsuit covering all current female Wal-Mart employees and anyone who worked for the company going back to late 1998. In a conference call with reporters after Monday’s ruling, Dukes said she was disappointed in the ruling but added, “we will persevere even though we didn’t get the ruling we hoped for.”

Lawyer Joseph Sellers said the ruling reverses 40 years of court decisions and raises the hurdles that workers have to clear to file discrimination claims. He emphasized that the decision made no judgment whether the company discriminated against its female workers and that he’s “determined to proceed” on behalf of his clients. This could be through scores of individual lawsuits against Wal-Mart or smaller class-action claims.

Justice Ruth Bader-Ginsburg led the four-member dissent, saying the court’s holding “disqualifies the class at the starting gate” for putting too much of a burden on the plaintiffs to show their individual claims are sufficiently similar to form a class-action suit. The ‘dissimilarities’ approach leads the court to train its attention what distinguishes individual members, rather than on what unites them.” Ginbsurg was joined in her opinion by Justices Stephen Breyers, Sonia Sotomayor, and Elena Kagan.

But the U.S. Chamber of Commerce, which filed an amicus brief on behalf of Wal-Mart, said the unanimity of the case came when all the justices agreed that the lower court “radically lowered the standard for certifying class actions.

“Too often the class-action device is twisted and abused to force businesses to choose between settling meritless lawsuits or potentially facing financial ruin. Our economy would be better served if businesses could spend more resources creating jobs and few resources fighting frivolous litigation,” said Robin Conrad, executive vice president of the U.S. Chamber of Commerce’s National Chamber Litigation Center.

These are amazing statements by the plaintiffs, the Progressive judges, and the Democrats. Years ago, they lectured schoolchildren not to make “value judgments” or “stereotype.” It was every woman for herself, which meant what you thought about one woman, you couldn’t think about any woman. In those days, most women were happy to stay home and raise their children. A few malcontented women wanted to go play with the boys. Now we all have to play with them, whether we want to or not.

The female camel got her nose into the executive tent, and now all the women (seemingly) want to get their noses into the tent. Or do they? This sounds like the work of the Female Camel Workers of America trying to unionize the female camels. They don’t want the executives work, necessarily, just their pay. Those female executive camels work long hours and have to travel. If the caravan goes across the country, they have to load up the house on their backs and travel with it.

Lower-paid camels don’t have to travel, though, because they are less paid. There are plenty of camels out there in California to do what they do. Therefore, they can stay wherever they are and keep their children in the same schools. Still, if they can get on the union caravan and have some of that nice, executive pay redistributed, they’ll sign on. The company might have a problem enticing their female executives to caravan out to California, but that’s the company’s problem, not theirs.

If the Women of Wal-Mart want the better pay and be able to travel and get away from the kids, they’re going to have to prove they can do more than bag the merchandise. Why should they, though, if they can sue the company for the same money?

Fortunately, the Supreme Court saw through the ruse. Sen. Leahy had an amazing charge, accusing this more Conservative court of having an “activist majority.” Note how he also rails against the court’s ruling, erecting “substantially higher barriers for working men and women to vindicate rights to be free from employment discrimination.”

How did those men get their noses under the Progressive activists’ tent, anyway? Working men and women. That sounds like something from the 1930s. Executives, managers, and supervisors would be very surprised to hear that they don’t “work.” There used to be something called manual laborers, who didn’t have enough education to do anything else.

Wal-Mart’s “sales associates” are very pleasant people. It did a wise thing in opening non-union stores. Let us hope that the union camels don’t get their noses under Wal-Mart’s tent and turn what is an amazing American success story into Ali-Baba and the 1.6 Million Thieves.



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