The Wages of Walmart

The retail giant has won a major gender-discrimination battle, but the war is not over.

Last week, the Supreme Court of the United States tossed out the largest class-action lawsuit in U.S. history, arguing that a gender discrimination suit on behalf of all of Walmart’s 1.5 million current and former female employees was too broad to be granted class-action status. Critics argued that the decision amounted to an erosion of civil rights and an admission by the court that some companies are too big to sue. But supporters of the decision say the suit would have harmed the largest private-sector employer in the U.S. by restricting its ability to hire, and that the benefits of the suit would largely have gone to the lawyers.

THE MARK: Will the Supreme Court's ruling make it harder for future plaintiffs to sue large corporations?

JAMES COPLAND: You can still sue Walmart for gender discrimination, but you can’t sue a nation-wide company on behalf of a million and a half people. Suing like that would foreclose remedies for genuine discrimination victims, enrich the lawyers, and effectively put a tax on working at Walmart – which would make Walmart hire fewer employees and/or pay them less. That's the end result of these types of class-action suits. You can still sue, you just can't sue this way – and that's a good thing.

LIZA FEATHERSTONE: Jim's quite right that, if I'm personally discriminated against by Walmart, I can still sue Walmart for gender discrimination. The issue here is: What if the problem is too big? In this decision, Justice Antonin Scalia was essentially saying, "If the problem really is that big – if there really is systemic discrimination in a company – too bad." That's why we should be disturbed about this ruling; it's saying some problems are just too big to solve.

COPLAND: Just to rebut that: I don't think that's what Scalia was saying. What Scalia was specifically saying was that Rule 23a, not 23b, of the federal-to-civil procedure was operative. Rule 23 says, "There are questions of law or fact common to the class." So what Justice Scalia was saying was, "These things are just too dissimilar across a million and a half plaintiffs to even get to the class-action stage." What Justice Ruth Bader Ginsberg was saying in her dissent was, "I'm not so sure about that. It doesn't necessarily mean we can't have a class action, but we can't have this one." All the justices agreed that we can't have this type of class action. But maybe there's a different type of class action with more due process, protections, and the ability to opt out.

But stepping aside from the disagreement between the majority and the dissent, I think the unanimous holding of the court is a win for female employees. Because if I'm an employed female who’s being discriminated against – and I might have a real good claim against that employer – I don't want my legal rights foreclosed by a large class action that the lawyers are running, where I might get pennies on the dollar for what my legitimate lawsuit would win individually.