Imagine that after decades and decades of lower pay for equal work, millions of women across the country united
ir case out of court and deny them any compensation or satisfaction.
That is what is about to happen. Several years ago, current and former female employees of Wal-Mart filed a class action lawsuit against the corporation for gender discrimination. The trial court certified the proposed class, and the 9th Circuit Court of Appeals affirmed that decision. Within the next few months, the Supreme Court will decide whether to let the case go forward or to throw it out (practically speaking, the certification, not the trial, is the determinative part of a class action case because defendants nearly always settle once a class is certified).
Although predicting the outcome of Supreme Court cases is a difficult game, MTTC predicts that the court will overturn the lower courts’ decisions and deny certification. The vote will likely be 5-4, with five men in the majority and three women and one man in the dissent.
Smelling controversy, the media will explode into a maelstrom of questions about systemic discrimination defended by the court. Fox News might even try to turn the issue against Obama by accusing him of appointing two women to the court specifically because he saw this case coming and wanted to shore up women voters for the 2012 election.
In the rush to figure out the most interesting angles on the story, media outlets will neglect (as usual) to actually read the case or talk to legal experts. If they did, they would learn that despite its appearance, the Supreme Court’s decision was not the result of sexism.
The current Supreme Court has a very clear disdain for class action lawsuits. The most recent example of that disdain is the case that allowed arbitration clauses to prevent class actions. These cases are usually decided 5-4, with the five (male) conservative justices in the majority. Thus far, none of these anti-class action cases have been gender-related. So, it will not be surprising when the same five justices vote to decertify yet another class.
In other words, the gender-split in the court will have nothing to do with the gender issues in the case, but will instead be due to the justices’ philosophies about class actions.
This is not to say that Wal-Mart should win its appeal; it probably shouldn’t. Nor is this to say that some Supreme Court Justices are not sexist;they may be. The point is that this decision will not provide any evidence of sexism by the court.