Justice Kennedy probed the respondent no less than four times for Wal-Mart’s supposedly “unlawful policy” that caused sexual discrimination. Sellers dodged Kennedy’s questions, claiming Wal-Mart has “a very strong corporate culture” that provides its managers with “unchecked discretion,” and this leads to across-the-board discrimination based on sex. Justice Scalia pointed out a flaw in Sellers’ logic: “If somebody tells you how to exercise discretion, you don’t have discretion.” Sellers conceded to Scalia that Wal-Mart has a written policy against sex discrimination.
Sellers stammered and struggled to answer Scalia’s charge that his reasoning: “…assumes that if there is a disparity between the advancement of women and the advancement of men, it can only be attributed to sex discrimination.” Scalia also questioned how Sellers could fulfill the commonality requirement for class-action certification when his “class” includes women who were both underpaid and women who were not underpaid by Wal-Mart.
Are these women helping others?
This would be America’s largest-ever class-action suit for employment discrimination and would therefore set a powerful precedent. Sexual discrimination lawsuits and complaints are springing up from cocktail waitresses in Atlantic City to students at Yale University. If Betty Dukes et. al. achieves class-action certification, many sexual discrimination suits will gain a crippling new momentum.
Employees who normally would not risk the cost of bringing a weak individual case against their employer will simply pool their story together with others who have remotely similar stories for a class-action suit. As the petitioner’s attorney Theodore J. Boutrous Jr. argued: “Each of the plaintiffs have very different stories. One of them was promoted into a managerial position. One was terminated for disciplinary violations. One was promoted and then had a disciplinary problem and then was demoted.”
American companies cannot afford to employ women and men if they perpetually fear that a handful of employees with disparate claims can hack billions of dollars in damages from their bottom lines.
Women will hurt in the long-run if we become a society where the courts construe individual manager discretion into a formal corporate policy and maintain that a handful of individuals with different stories can form a class and represent millions of others with equally different stories, potentially barring women from individual recourse.
Madeleine Albright once told TIME Magazine: “…it is important for women to help one another. I have a saying: There is a special place in hell for women who don't.” Unfortunately, Betty Dukes et. al. seem poised to hurt, not help, other women if the Court rules in their favor. When feminists play the victim card for money, they often fail to understand the repercussions of their actions.