sexism storm on the horizon

Imagine that after decades and decades of lower pay for equal work, millions of women across the country united to hold the largest private employer of women in the county accountable. Their lawsuit achieved victories in the trial and appellate courts. They were on the cusp of finally making a huge corporation pay for its discriminatory practices when a majority-male Supreme Court decided, almost exactly along gender lines, to throw their 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.

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7 Responses to sexism storm on the horizon

  1. villagebear says:

  2. demark! says:

    That baby bear pic is precious, but this is moreso: “MTTC predicts that the court will overturn the lower courts’ decisions and deny certification.” How much do I like that quote? I’m split along gender lines, but the answer is a lot.

    Incidentally, MTTC, I wouldn’t entirely give SCOTUS a sexism pass here. While I entirely agree with your explanation of the case, the likely outcome, and the likely reaction, I’m not quite willing to give all of “Felacious Five” conservatives a pass (note: BBB just made that up. That’s my blawg’s name). Justice Thomas has, on more than one occasion since “the incident,” shown particular disdain for women and women’s issues. Since I’m headed into a meeting with the ambassador right this moment, you’ll have to trust me sans case cites. Maybe MTTC can do a little digging. But I wouldn’t be surprised if there’s a twinge of sexism that underlies his inevitable denial of class certification. Heck, maybe he’ll write a concurrence (or, fingers crossed, a dissent) saying, “Anita Hill no likey Clarence. Clarence no likey women.”

  3. Suszek says:

    “BBB” isn’t bad. I will go one step further though: “treB.” It’ll grow on you.

    A Justice Thomas sexist rant would be quite the rarity. I am kind of hoping for it now. To my knowledge, the last time we saw a Supreme Court concurrence for the sole purpose of going on a bigoted rant was in 1986, when Justice Burger found it necessary to concur in Bowers v. Hardwick just to make it clear how immoral he found homosexuality to be.

  4. Keri says:

    Meh… I don’t think the media would care about this much. Sexism in the Supreme Court? Not a bad story, but SCHWARZENEGGER FATHERED A LOVE CHILD!!!! Granted, that story will have run its course by the time of the decision, but you get the idea. The media will find something else more menial to fixate on.

  5. Suszek says:

    It is probably a fool’s game to try to predict how the media will react to anything. Your reference to the Schwarzenegger story reminds me of how the dog in Up reacted to squirrels (which is probably a pretty accurate way to portray the media).

  6. Keri says:

    Haha! Hilarious.

  7. Pingback: walmart gender discrimination result | more than twenty cents

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