Wal-Mart Suit Reveals Gender Gap at Supreme Court

Amidst a U.S. Supreme Court discrimination lawsuit against Wal-Mart Stores Inc., a gender gap dispute resulted between the court’s three female justices and their male colleagues.

Among the three female Supreme Court justices were Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. All had voiced their support for the class-action lawsuit, which claims women employees across the country were victimized by the retail giant’s permittance of allowing local store managers make subjective decisions regarding promotions and compensation. The case marks the first gender-bias suit the Supreme Court has considered with three women on the bench.

The powerful three-some jumped at the lead by questioning Theodore Boutrous, one of Wal-Mart’s top attorneys. Ginsburg mentioned how corporate decision-makers have a tendency to acquire personnel like themselves, while Justice Sotomayor argued the use of statistical analysis in discrimination cases. The newest justice, Elena Kagan, thought otherwise when Boutrous claimed the workers’ case was based on an “incoherent theory.”

“I guess I’m just a little bit confused as to why excessive subjectivity is not a policy that can be alleged” said Kagan, as the basis of a job-discrimination suit.

The questioning brought on by the three women justices did not sit well with Justices Antonin Scalia and Anthony Kennedy, who acknowledged whether the victimized women had pointed to a corporate policy that violated their rights under the main federal job-bias law, known as Title VII. The justices are evaluating whether the mass of female employees of Wal-Mart have enough in common to establish a legitimate nationwide suit against the retailer.

Justice Scalia said Wal-Mart established an “announced policy against sex discrimination” and showed signs of disbelief when the attorney representing the victimized women argued that the truth behind the policy was just the opposite.

“Do you think you’ve adequately shown that that policy is a fraud and that what’s really going on is that there is a central policy that promotes discrimination against women?” Justice Scalia said.

Ruth Ginsburg made it clear that she took a different perspective with respect to the pervasiveness of gender bias in the workplace. Ginsburg, who was a prominent anti-discrimination advocate before she became a judge, compared the suit to a successful case in the 1970s against American Telephone and Telegraph Co. over the application of a “total person” test to make promotion decisions.

“The idea wasn’t at all complicated,” Ginsburg said. “It was that most people prefer themselves and so a decision-maker, all other things being equal, would prefer someone that looked like him.”

Injecting during the trial over a dozen times, Sotomayor remained focused on technical questions, suggesting a middle ground that would allow a more narrow class action to go forward.

She counter-argued Boutrous when he made the claim that the plaintiffs hadn’t shown a common pattern of lower pay for women on a nationwide basis. Sotomayor made the argument that the plaintiffs’ expert witness had concluded that the compensation discrepancy between men and women at Wal-Mart stores was much higher than at 10 of its competitors.

The lone male justice, Justice Stephen Breyer, hinted at his agreement with his female colleagues. His opinion aligned with Sotomayor's when she asked Boutrous why the justices couldn’t at least allow a limited class action seeking an injunction against the company.

"The trial has been an entertaining case that should yield a very interesting and potentially ground-breaking outcome." said observing attorney from one of the top law firms in New York.

The case may divide the court along familiar lines, leaving those four justices in dissent.