Justice Antonin Scalia, writing for the majority, said the women suing Wal-Mart could not show that they would receive “a common answer to the crucial question, why was I disfavored?” He noted that the company, the nation’s largest private employer, operated some 3,400 stores, had an expressed policy forbidding discrimination and granted local managers substantial discretion.“On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action,” Justice Scalia wrote. “It is a policy against having uniform employment practices.”
Such a finding raises really interesting questions about the justice of employer-employee relationships in large corporations. In one sense, Wal-Mart’s approach – a general set of principles, with wide latitude for individual store managers – is exactly the approach to management one would desire on the grounds of subsidiarity. A more rigid, hierarchical system for pay and promotion, run from central offices, could certainly seem detrimental, even from an employee perspective. Further, in theory, the more flexible system leaves open the possibility (as does the court’s ruling) that particular cases of discrimination in the actions of particular managers making particular comments could still be litigated.
However, this last point really highlights the problem of size. Class-action suits are attractive in cases like this for many reasons, not simply because they offer a potential bonanza for lawyers. The burden of an individual employee trying to sue Wal-Mart for discrimination would seem to impose wildly disproportionate burdens on the two sides, not only because it would prove difficult for an at-will employee to sustain such a case, but also because Wal-Mart employees denied promotion are making so little money in the first place. Thus, class-action suits – even the threat of class-action suits – function as a sufficiently large tool to discipline the organization.
But it is true that they are a very problematic blunt instrument. Does it seem likely that Wal-Mart management is something of an “old-boy’s network” where informal discrimination is culturally acceptable or even encouraged? Probably so. Does it indicate that all managers and all female employees are in such problematic relationships? Probably not. Bethany Moreton’s fascinating study of Wal-Mart’s evangelical corporate culture indicates that the quasi-familial (and patriarchal) patterns of store life, coupled with Wal-Mart’s flexible policies, likely add up to a lot of messiness in terms of adjudicating blame.
The real instrument necessary in these situations is one that is readily at hand: employees must unionize. I do not really see how these issues can be successfully addressed unless employees have some strength to bargain for pay, promotion systems, and work rules. Unions do not magically solve problems. But the threat of problematic class-action suits to control the behavior of large corporations is vastly inferior to unionization, which Wal-Mart has always opposed in every possible way. In fact, class-action suits may even distract us from the fact that Wal-Mart’s labor practices – and in particular, the enormous pressure exerted by corporate on store managers to squeeze down store labor costs to an absolute minimum – can only be addressed through unionization.
The other solution, of course, is to recognize that large systems like Wal-Mart are inherently problematic, not simply in terms of gender discrimination, but for workers in general. “Quotas of gratuitousness” are not going to flourish in such systems. Those who wish to defend Wal-Mart’s existence need to at least recognize that if it is to exist, unionization is desperately needed in such cases. But frankly, realistically, there are alternatives to Wal-Mart. Support the alternatives, and those who work in them.