In Wal-Mart v. Dukes, the Supreme Court set a dangerous precedent
when it ruled that the women in the class action suit could not
prove a common culture of sex discrimination. But sexism is no
longer written in official policy. It's engrained in culture.
The Supreme Court's ruling in favor of "the world's biggest
boss," as GritTV's Laura Flanders put it, in the Wal-Mart v. Dukes
sex discrimination class action lawsuit this week is a major blow to
working women across America. And perhaps even more important, it's
a sign that some of the esteemed judges on our nation's highest
court need a primer in how contemporary discrimination functions.
The court decided 5-4 that up to 1.5 million former and current
female employees couldn't file suit against Wal-Mart together as a
class because there was scant evidence of institutionally sanctioned
or organized discrimination by the company. But women make up over
65 percent of hourly employees at Wal-Mart, and only 34.5 percent of
managers. In other words, Wal-Mart - like so many of America's
biggest businesses - has a gender and leadership problem.
In his majority opinion, however, Justice Antonin Scalia argued
that numbers like these, coupled with stories about the widespread
exclusion of and humiliation of women, didn't constitute
discrimination because, well, Wal-Mart has a non-discrimination
Further, he wrote that Wal-Mart's policy of allowing discretion
by local supervisors in employment practices - importantly,
uncharacteristic of the corporation's overall micromanaging style -
was "just the opposite of a uniform employment practice that would
provide the commonality needed for a class action; it is a policy
against having uniform employment practices."
A lesson in 21st century discrimination
Apparently Mr. Scalia needs a lesson in 21st century
discrimination. This is a time in which discrimination of all kinds
doesn't usually advertise itself on "white's only" water fountain
signs and "woman wanted" ads for secretary positions in Sunday's
neighborhood newspaper. It's a time when racism, sexism, and other
forms of discrimination are entrenched in our culture - insidious,
covert, often subtle. It's a time when the distribution of power -
money, jobs, influence - is almost entirely dependent on informal
relationships born of a still alarmingly segregated society.
It's not company rules that most brave working women have to
challenge these days; it's informal and widespread exclusion. As
Rinku Sen wrote in ColorLines magazine: "Certainly, there has been
some blatantly sexist behavior among Wal-Mart managers...but mostly,
Wal-Mart's system runs on silence."
At Wal-Mart, as with so many American companies, men speak the
private language of promotion and negotiation, while women are left
confused as to where the pipeline to power and new opportunities
even starts. With women still taking on the majority of caretaking
responsibilities, their second shift often prevents them from doing
the kind of after-hours bonding necessary, were their male managers
even willing to bring them into the "inner circle."
Culture is hard to legislate, but it's a real factor
Culture, of course, is harder to discuss, legislate, and change
than policies, but that doesn't mean that our nation's highest court
is off the hook. …