Did you know that “Catch-22 (logic)” has its own Wiki page? To wit, “[C]oined by Joseph Heller in his novel Catch-22, is a logical paradox arising from a situation in which an individual needs something that can only be acquired by not being in that very situation; therefore, the acquisition of this thing becomes logically impossible.”
I wonder what Joseph Heller might think about today’s U.S. Supreme Court decision Wal-Mart Stores v. Dukes (which we covered here). One thing for sure – it made it virtually impossible to hold accountable Wal-Mart for sex discrimination. In other words, according to Justice Scalia who wrote the Court’s opinion, there was no “companywide discriminatory pay and promotion policy.” The class action case was brought because of the policies of local store managers. But now, thanks to this decision, you can’t bring a class action for the policies of local store managers because there was no “companywide discriminatory pay and promotion policy.” Therefore it is logically impossible to ever bring a suit like this!
(Well, I guess that’s not completely true. As AP reports, “Now, the handful of women who brought the lawsuit may pursue their claims on their own, with much less money at stake and less pressure on Wal-Mart to settle.” In other words, there is no longer any financial incentive for massive employers like Wal-Mart to settle with victims and stop pervasive discrmination like this.)
I guess who didn’t see this coming? The U.S. Supreme Court reversed a lower court placing even further limits on the use of class actions lawsuits for those seeking justice against corporate malfeasance.
The justices divided 5-4 on another aspect of the ruling that could make it much harder to mount similar class-action discrimination lawsuits against large employers.
Justice Antonin Scalia's opinion for the court's conservative majority said there needs to be common elements tying together "literally millions of employment decisions at once."
But Scalia said that in the lawsuit against the nation's largest private employer, "That is entirely absent here."
Justice Ruth Bader Ginsburg, writing for the court's four liberal justices, said there was more than enough uniting the claims. "Wal-Mart's delegation of discretion over pay and promotions is a policy uniform throughout all stores," Ginsburg said.
Here are some excerpts from the opinion of Justice Ginsburg, with whom Justice Breyer, Justice Sotomayor, and Justice Kagan joined, concurring in part and dissenting in part:
"The plaintiffs’ evidence, including class members’ tales of their own experiences, suggests that gender bias suffused Wal-Mart’s company culture...
"The Court gives no credence to the key dispute common to the class: whether Wal-Mart’s discretionary pay and pro-motion policies are discriminatory...
"Among illustrations, senior management often refer to female associates as “little Janie Qs.” Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 13 (internal quotation marks omitted). One manager told an employee that “[m]en are here to make a career and women aren’t.” 222 F. R. D., at 166 (internal quotation marks omitted). A committee of female Wal-Mart executives concluded that “[s]tereotypes limit the opportunities offered to women.” Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, at 16(internal quotation marks omitted)."
The impact? “Supporters of the women feared that a decision in favor of Wal-Mart could remove a valuable weapon for fighting all sorts of discrimination.” Little doubt about that.