A couple of months ago, I wondered what would happen for about 1.5 million women when the Supreme Court got its hands on the class-action, gender-discrimination lawsuit against corporate giant Wal-Mart. That’s the approximate number of plaintiffs in the case who have alleged they’ve been victims of institutional efforts by Wal-mart to promote men over women and systematically pay women less than men for decades.
Technically, the only issue to be determined by the Supreme Court is whether a class of plaintiffs can be this big. That’s some good, wonky procedural stuff for recovering lawyers like me! But as SCOTUS watchers know, that fact that a relatively narrow question is before them hasn’t always stopped the the highest court in the land from crafting decisions that go beyond the stated issue, so the question of gender discrimination is likely to have an impact on the final outcome.
And that’s where the personal experiences of Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan come in — three women who, undoubtedly, have experienced gender discrimination in their professional lives and can use that lens through which to persuade the testosterone side of the bench to see things differently.
Justice Ginsburg, as the only woman on the bench in 2006, wasn’t able to persuade her male colleagues that Lilly Ledbetter was owed $365,000 in back pay and benefits that were denied her by her longtime employer, Goodyear. But in a later case, Ginsburg was successful in convincing her eight male colleagues that there is a serious difference between being a teen boy dealing with school locker room antics and a teen girl who’s been asked to strip for a drug search in her principal’s office in Safford Unified School District vs. Savana Redding. Following the oral arguments in the case about whether Redding’s constitutional rights had been violated, Ginsburg lamented:
“They have never been a 13-year-old girl . . . It’s a very sensitive age for a girl. I didn’t think that my colleagues, some of them, quite understood.”
When it comes to the upcoming Wal-Mart case, it’s probably safe to say that the men on the Supreme Court can’t quite understand the subtle realities of gender discrimination in the workplace because they’ve never been a target, though I’d be interested in hearing what their wives and daughters have to say about their experiences. But Ginsburg has been very open about her experiences having to hide her pregnancies for fear losing her job. While Justices Sotomayor and Kagan have been more circumspect about how the legacy of gender discrimination may have impacted their careers, there’s no question that having three women on the Supreme Court for the first time ever will play a significant role in the behind-the-scenes judicial discussions that take place on the Wal-mart case, just as having an outraged Ginsburg did for Savana Redding.
Reports of the oral arguments indicate that even the women justices have concerns about how to manage this case as a class action. But the menfolk asked questions suggesting that maybe the merits of the case should just be viewed through the lens of a few “bad apples.” After all, one justice said, even if Wal-mart has policies against gender discrimination in place, that doesn’t mean a handful of supervisors won’t discriminate from time to time.
Except that was the argument that the world of symphony orchestras made when women musicians contended they were being discriminated against in favor of men. Those doing the hiring said, “NONSENSE! We’re merely applying the same criteria to everyone and you ladies are falling short.” Then, women were successful in advocating for “blind” auditions — those hiring musicians would not be able to see the performer while they played and would only be able to assess the applicant on the music they heard. And you know what happened? Increasing numbers of women were hired and those making the decisions were shocked that they were, whether on purpose or not, favoring the men applicants. Their purportedly objective standards were tainted by subjective attitudes.
We all know how that goes in the real world.
Since we know that the uber-conservatives on the court have taken liberties in the recent past about broadening the legal questions to be addressed, it would come as no surprise if any opinion issued also tries to slap down existing law on gender discrimination suits. I’m keeping my fingers crossed that the three women justices can at least keep any decisions focused on the procedural question about whether a class of plaintiffs can be this big — whether they can, in fact, share the common injuries and similar situations that are required to meet the test. Because then we can move on to the real issue — how to explain away the facts that women, as a general matter, get paid less and promoted less than the men of Wal-mart.