Walmart wins

[FromWayDowntown]

And, frankly, I get that. I don't necessarily agree with it, but I can at least follow the logic there.

My tripping point remains the verbiage that specifically ties the class action mechanism to issues of stated policy. In 2011, one would assume that all instances of discrimination, especially within a corporation of Wal-Mart's size, would be the result of someone(s) acting outside of company policy. Using policy to determine the viability of a class action, then, strikes me as both arbitrary and ineffectual.

I'm not sure that any reference to stated policy as the basis for a le VII action is intended to be exhaustive of the sorts of discrimination claims that could be subject to class certification. For instance, if the claimants all alleged (and could prove) that every decision-maker for Wal-Mart acted in precisely the same way, there would be a clear commonality among the claims even if those actions weren't directed by some stated policy. While that scenario might be far-fetched, I think it would still be amenable to proceeding as a class if it could be established.

[CuckingFunt]

If 99% of managers discriminate (in the case where there's no stated corporate policy), does that mean that class action would not apply because there's a 1% that doesn't fit in the class? Would defense strategy against class action now shift into looking for that one off case that might not apply to shut down the entire class action status? I suspect that might be the case.

The way I'm understanding it, the class action may be shut down because the 99% of managers who discriminate may not all discriminate in the same way.

[ElNono]

My tripping point remains the verbiage that specifically ties the class action mechanism to issues of stated policy. In 2011, one would assume that all instances of discrimination, especially within a corporation of Wal-Mart's size, would be the result of someone(s) acting outside of company policy. Using policy to determine the viability of a class action, then, strikes me as both arbitrary and ineffectual.

This is exactly another concern too. Would 'no stated company policy' become a defense to invalidate class action status?

[FromWayDowntown]

Thanks for weighing in. My concern is that by not specifying where the line is drawn for acceptance of class action status, this makes the waters more muddy. Taking from your example, Bob and George undeniably are representing the company in their capacity as managers. I understand the contention that since Bob and George might make up 0.1% of all Walmart managers, then attempting to pile up all Walmart women would seem unfair, or flat out wrong. The problem I see however is that there was no specification as to where the tipping point is. If 99% of managers discriminate (in the case where there's no stated corporate policy), does that mean that class action would not apply because there's a 1% that doesn't fit in the class? Would defense strategy against class action now shift into looking for that one off case that might not apply to shut down the entire class action status? I suspect that might be the case.

My point isn't that there may be some Wal-Mart managers who don't discriminate; my point is that it appears that those Wal-Mart managers who discriminate do so in different ways.

The intrinsic virtue of the class action mechanism is the ability to efficiently dispose of all claims of all class members in a single proceeding that can be resolved by posing just a handful of questions to the finder of fact (be it the judge or a jury). Where, for instance, every act of discrimination is the same -- say, a provable method of keeping the wages of female workers at a level that is 10% lower than every similar male worker -- the class action is a great method for resolving those claims. There will be one expert witness who will testify to a statistical analysis in which he or she proves that 10% disparity and its universality. The fact finder is then asked, "Do you find that Wal-Mart discriminated against the class members?" and answers that question based on the singular manifestation of discrimination.

In the current example, by contrast, you've got women saying a variety of things about the way in which they endured discrimination. Of the class representatives, one says she was denied promotions, one says that she was punished more harshly than men for similar violations, and one says that she was berated by her manager and told to "doll herself up" and other such offensive things. If you try those claims together, you have to have testimony concerning the denial of promotions as to the first claimant, testimony concerning the relative punishment of the second claimant and her male colleagues, and testimony concerning the sorts of things the manager said to the third claimant. Then the jury has to decide whether, in each instance, the conduct proven by the testimony is discriminatory; and it has to decide how to remedy that (in this case, the women sought some pervasive injunctive relief, but also sought remedies like backpay and punitive damages that would have to be awarded idiosyncratically).

Now, again, that might seem a minor problem in the context of three claimants; but where the field of claimants is expanded (and here, it would exceed 1,000,000 women -- all of whom may have different stories) the feasibility of resolving those claims in a single trial becomes manifestly questionable, I think. And that's the concern that the basic requirements of Federal Rule of Civil Procedure 23 (the class action rule) try to allay by insisting that class claims meet certain threshold levels of commonality.

I do agree that class action is abused and that the returns are generally meager for the actual victims. That said, I do think they still effectively can serve as a deterrent (I'm fairly confident that if Walmart would have lost this case, their internal policies would have been adjusted to screen potential problem managers better), and to provide a sense of justice for the collective.

Undoubtedly true.

[ElNono]

My point isn't that there may be some Wal-Mart managers who don't discriminate; my point is that it appears that those Wal-Mart managers who discriminate do so in different ways.

The intrinsic virtue of the class action mechanism is the ability to efficiently dispose of all claims of all class members in a single proceeding that can be resolved by posing just a handful of questions to the finder of fact (be it the judge or a jury). Where, for instance, every act of discrimination is the same -- say, a provable method of keeping the wages of female workers at a level that is 10% lower than every similar male worker -- the class action is a great method for resolving those claims. There will be one expert witness who will testify to a statistical analysis in which he or she proves that 10% disparity and its universality. The fact finder is then asked, "Do you find that Wal-Mart discriminated against the class members?" and answers that question based on the singular manifestation of discrimination.

In the current example, by contrast, you've got women saying a variety of things about the way in which they endured discrimination. Of the class representatives, one says she was denied promotions, one says that she was punished more harshly than men for similar violations, and one says that she was berated by her manager and told to "doll herself up" and other such offensive things. If you try those claims together, you have to have testimony concerning the denial of promotions as to the first claimant, testimony concerning the relative punishment of the second claimant and her male colleagues, and testimony concerning the sorts of things the manager said to the third claimant. Then the jury has to decide whether, in each instance, the conduct proven by the testimony is discriminatory; and it has to decide how to remedy that (in this case, the women sought some pervasive injunctive relief, but also sought remedies like backpay and punitive damages that would have to be awarded idiosyncratically).

Now, again, that might seem a minor problem in the context of three claimants; but where the field of claimants is expanded (and here, it would exceed 1,000,000 women -- all of whom may have different stories) the feasibility of resolving those claims in a single trial becomes manifestly questionable, I think. And that's the concern that the basic requirements of Federal Rule of Civil Procedure 23 (the class action rule) try to allay by insisting that class claims meet certain threshold levels of commonality.

Thanks. I suspect a lot of this will be tested in lower courts, and potentially reach the SCOTUS again at some point in the future.

[CuckingFunt]

I'm not sure that any reference to stated policy as the basis for a le VII action is intended to be exhaustive of the sorts of discrimination claims that could be subject to class certification. For instance, if the claimants all alleged (and could prove) that every decision-maker for Wal-Mart acted in precisely the same way, there would be a clear commonality among the claims even if those actions weren't directed by some stated policy. While that scenario might be far-fetched, I think it would still be amenable to proceeding as a class if it could be established.

Well, sure. But I guess the problem I have is that this ruling seems to throw another hurdle at a particular type of legal dispute for which the strength-in-numbers aspect of a class action has typically been beneficial. Realistically, the odds of a corporation as large and as far reaching as Wal-Mart ever being caught practicing identical nationwide discrimination are pretty slim, but have identical claims ever been the point of class action suits? Granted, I've got zero legal background, but it has always seemed to me that class actions focused more on issues of similarity than repe ion.

Additionally the ruling absolves the corporation itself of a fair amount of accountability. There is a big difference between suing Bob and George for being ty bosses and suing Wal-Mart for hiring ty bosses.

[RandomGuy]

I think the rights of corporate "persons" have gone a bit far.

The evidence in the case was pretty plain to the dissenting judges on the SC that Wal-Mart was, and still is, discriminating in a pretty profound way.

Time to re-write the laws, so that this ruling by the activist judges on the SC can be nullified.

Yeah, I said "activist".

[boutons_deux]

"the rights of corporate "persons" have gone a bit far."

how about:

The Supreme Court held is that, even though employees of Janus Capital Management company actually wrote any misleading statements, even though they managed nearly every substantive aspect of the operation of the fund, they cannot be held responsible because they did not “make” the statements. The “person” under law who made the statements was the en y on whose behalf the offending prospectus was issued, the investment fund, which has no capital other than the money it invests for shareholders. Under Janus, the management company is beyond the reach of aggrieved investors.

the Supreme Court ignored reality, along with decades of history, in favor of a breathtakingly narrow reading of the law. In writing for the majority, Justice Clarence Thomas wrote that despite Janus Capital Management’s inarguable role in preparing those prospectuses, the statements therein were “made” by the Janus funds. As such, according to the Court, the funds are responsible for those statements, not Janus Capital Group

http://www.nakedcapitalism.com/2011/...+capitalism%29

[FromWayDowntown]

Granted, I've got zero legal background, but it has always seemed to me that class actions focused more on issues of similarity than repe ion.

Class actions have everything to do with similarity; if that is coextensive with the conduct being repe ive, that's helpful to their efficient prosecution, but the lack of repe ion would not preclude the possibility that the claims would be similar.

My example in my earlier response to you wasn't meant to suggest that repe ion would be necessary to sustain a class certification in all instances where there is a lack of corporate policy -- it was meant only to suggest an example of a situation in which a class proceeding could be tenable even if there were no express corporate policy.

At bottom, there are 4 essential factors that must be met to sustain any class, including proof that there are common questions of law and fact among the class members and that the common questions of law and fact predominate over those that are different. Justice Scalia's fundamental conclusion here is that the claims of the class claimants in this instance aren't similar enough because the discrimination visited upon them differs, at least in terms of its type.

Additionally the ruling absolves the corporation itself of a fair amount of accountability. There is a big difference between suing Bob and George for being ty bosses and suing Wal-Mart for hiring ty bosses.

I think you misapprehend the scope of those actions. If a claimant is suing for the discriminatory acts of Bob or George, she's not suing Bob or George as individuals. She's suing Wal-Mart for the conduct of its employee (conduct for which Wal-Mart is likely vicariously liable) and potentially for the negligence of Wal-Mart itself in hiring that manager. It's ultimately Wal-Mart that will be liable for the discriminatory conduct.

[CuckingFunt]

I think you misapprehend the scope of those actions. If a claimant is suing for the discriminatory acts of Bob or George, she's not suing Bob or George as individuals. She's suing Wal-Mart for the conduct of its employee (conduct for which Wal-Mart is likely vicariously liable) and potentially for the negligence of Wal-Mart itself in hiring that manager. It's ultimately Wal-Mart that will be liable for the discriminatory conduct.

My example was intentionally oversimplified to make a point. Wal-Mart remains liable regardless the scale, but presumably several small cases are easier to sweep under the rug than one large one. Wal-Mart could still take the hit financially, and perhaps an even bigger one depending on how things play out over time, but in terms of reputation/perception the corporation may remain relatively unscathed. Even this ruling stands out as a victory for the Wal-Mart despite not actually addressing the prevalence of discriminatory practices within the corporation.

[CosmicCowboy]

Well, sure. But I guess the problem I have is that this ruling seems to throw another hurdle at a particular type of legal dispute for which the strength-in-numbers aspect of a class action has typically been beneficial. Realistically, the odds of a corporation as large and as far reaching as Wal-Mart ever being caught practicing identical nationwide discrimination are pretty slim, but have identical claims ever been the point of class action suits? Granted, I've got zero legal background, but it has always seemed to me that class actions focused more on issues of similarity than repe ion.

Additionally the ruling absolves the corporation itself of a fair amount of accountability. There is a big difference between suing Bob and George for being ty bosses and suing Wal-Mart for hiring ty bosses.

Actually, class action suits with absolutely identical claims are quite common. I just got a notice the other day that said I was eligible for a class action suit against Farmers Insurance ( I used to have my car and house insured with them). Apparently there was a discrepancy in how they figured their management fee (The company is technically owned by the policyholders and pays them a fee to administer it). The lawsuit was for 455 Million + 90 million in attorneys fees. My portion of the 455 million would be $20.95...

[Blake]

My example was intentionally oversimplified to make a point. Wal-Mart remains liable regardless the scale, but presumably several small cases are easier to sweep under the rug than one large one. Wal-Mart could still take the hit financially, and perhaps an even bigger one depending on how things play out over time, but in terms of reputation/perception the corporation may remain relatively unscathed. Even this ruling stands out as a victory for the Wal-Mart despite not actually addressing the prevalence of discriminatory practices within the corporation.

I would assume WalMart currently has clear written corporate policies laid out regarding discrimination.

If this is the case, what would you suggest that WalMart do to address and to stop possible discrimination practice by local managers in the future?

[DMX7]

This alone in the article makes a clear reason:

No company that discriminates has a nationawide policy telling their managers to openly discriminate against women but it happens anyway. It's Wal-Mart's job to make sure it doesn't happen. The "ignorance" card (i.e., we didn't know it has happenning) doesn't hold up as well as it used to.

[boutons_deux]

WC's advice: "affirmative action and quotas will fix sex discrimination"

[CuckingFunt]

I would assume WalMart currently has clear written corporate policies laid out regarding discrimination.

If this is the case, what would you suggest that WalMart do to address and to stop possible discrimination practice by local managers in the future?

I don't know. Enforce them, maybe?

[baseline bum]

What a mind of revisionism that is.

LOL. It reads like it was written by WC's literate cousin.

[Blake]

I don't know. Enforce them, maybe?

I like this one:

A federal appeals court in Illinois ruled that a worker was not a victim of religious discrimination when she was fired for harassing a gay coworker.
According to court do ents, Tanisha Matthews worked as an overnight stocker at a Wal-Mart store in Joliet, Ill. In September 2005 a co-worker identified as Amy filed a complaint with the store alleging that Matthews had harassed her for her sexual orientation during a work break.

In her statement, Amy reported that Matthews was “screaming over her” that God does not accept gays, they should not “be on earth,” and they will “go to ” because they are not “right in the head.” Five other employees confirmed that Matthews had said that gays are sinners and are going to .

Wal-Mart fired Matthews after concluding she’d violated the company’s discrimination and harassment prevention policy. Matthews sued, alleging she was discriminated against for both her race and Apostolic Christian religion, although she later dropped the racial claim.

http://www.wisconsingazette.com/brea...rt-worker.html

She gets fired for violating disrcrimination policies so she tries to sue them for discrimination.

[TheProfessor]

I find it humorous that there are often better legal discussions in here than I ever heard in law school.

[EVAY]

Not being an attorney is manifest in my case, but I thought that the Plessy vs. Ferguson case turned on the argument that unequal results equalled inequality...thus, the overturn and the requirement of massive societal changes in school districting.

Why isn't the result here...manifest inequality in promotions and Board positions proof of inequality in the same way?

Wasn't the above the basis for the successful class action suit against AT&T in 1979 that did more to change bias against women in the workplace than anything else?

[jack sommerset]

This ruling put a big smile on my face. Well done SC, well done indeed.

[Wild Cobra]

I think the part ElNono is questioning is tying the viability of such cases to a corporation's stated policies. The likelihood of Wal-Mart, or any other major corporation, having a specifically discriminatory policy on the books is pretty slim, but that alone does not rule out the possibility of discriminatory practices taking place on a national level.

Yes...

Possibility.

If we start up court cases based on possibilities, what type of a society would we become?

[Wild Cobra]

The lawsuit was for 455 Million + 90 million in attorneys fees. My portion of the 455 million would be $20.95...

That's the real crime.

[ElNono]

Yes...
Possibility.
If we start up court cases based on possibilities, what type of a society would we become?

Did her/his comment went over your head?

Every court case starts with the possibility of winning or losing. It's up to the prosecutors to argue the case and prove or not the claim.

Her comment was akin to saying that because you don't admit to wrongdoing doesn't mean you didn't do anything wrong. It's up to the court to evaluate the evidence and determine who's right.

[Wild Cobra]

Every court case starts with the possibility of winning or losing. It's up to the prosecutors to argue the case and prove or not the claim.

Yes, but there need to be a better possibility that there is an actual case.

[ElNono]

Yes, but there need to be a better possibility that there is an actual case.

The SCOTUS didn't dismiss the actual case(s) or even decide if discrimination took place, they only ruled whether they can obtain class action status.

Did you read the thread at all? There's some insightful comments from FWD et all.