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The largest sex discrimination suit in U.S. history ran into a wall of doubt at the Supreme Court today. The lawsuit was filed 10 years ago against Wal-Mart on behalf of one and a half million current and former employees. But the company, backed by most of corporate America, contends the suit is too big to be tried as a single class-action case.
NPR legal affairs correspondent Nina Totenberg reports.
Unidentified Group: Hey hey, ho ho. Unfair pay has got to go.
NINA TOTENBERG: With a crowd chanting that unfair pay has got to go, the protagonists in the Wal-Mart suit gathered on the steps of the high court today. Betty Dukes, the lead plaintiff.
Ms. BETTY DUKES (Lead Plaintiff): Wal-Mart is trying their level best is to keep us out of court so the facts will not be presented to the public at large or before a sitting jury.
TOTENBERG: Those facts, say the plaintiffs, show that when the case was filed 10 years ago, women held two-thirds of the lowest level hourly jobs and only one-third of the management jobs, and that women overall we're paid on average $1.16 an hour less than men in the same jobs despite having more seniority and higher performance ratings.
Wal-Mart, however, hotly disputes those statistics and puts forth its vice president for human resources, Gisel Ruiz.
Ms. GISEL RUIZ (Vice President for Human Resources, Wal-Mart): We've had policies, strong policies, against discrimination in place long before the lawsuit was filed. There are consequences for people who violate those policies.
TOTENBERG: Inside the court today, there was a clear difference between the perceptions of the three female justices and the six male justices. But even the women had doubts about how such a large employment discrimination case could be handled.
When Wal-Mart's lawyer, Ted Boutrous, contended that the lawsuit is unjustified in view of the company's clear policy against discrimination, the court's female justices put that assertion to the test.
Justice Ginsburg: If a company gets reports month after month showing that women are disproportionately passed over for promotion, and there's a pay gap between men and women doing the same job, isn't there some responsibility on the company to say: Is gender discrimination at work and to stop it?
Lawyer Boutrous replied that the statistics purporting to show discrimination mirror national statistics on gender disparities.
Justice Sotomayor: I thought the disparity was much higher than for those at Wal-Mart's 10 competitors.
Boutrous replied that regardless, the plaintiffs had failed to point to any company policy that resulted in discrimination.
Justice Kagan: I don't think that's quite fair. I think they're arguing that complete subjectivity allowed gender discrimination to play a role in employment decisions.
Justice Ginsburg picked up that thread, noting that in the 1970s, women won a class action suit against AT&T after showing that they scored competitively for promotion on objective tests but disproportionately flunked the final and subjective total person test, largely because all other things being equal, decision-makers tend to prefer people like themselves. Said Ginsburg: This sounds quite similar.
But when the women plaintiffs' lawyer Joseph Sellers rose to make his case, he was bombarded at first by the male justices.
Chief Justice Roberts: Is it true that Wal-Mart's pay disparity across the company is less than the national average?
Answer: The right comparison is between the pay for men and women at Wal-Mart.
Justice Kennedy: It's not clear to me what is the unlawful policy that Wal-Mart has adopted.
Answer: Wal-Mart has provided its managers unchecked discretion.
Justice Kennedy: Your complaint faces in two directions - the headquarters controls everything, and in the next breath you say that supervisors have too much discretion.
Lawyer Sellers, struggling, noted that at training sessions for managers the standard reply as to why there are so few women in management is that men are more aggressive in seeking advancement.
Justice Scalia: All they're saying is: If you have an aggressive woman, promote her.
Justice Ginsburg: Even assuming there was discrimination, what seems to me a very serious problem is how would you work out the back pay for such a large and diverse class? Didn't the district judge say that in awarding back pay, some would get a windfall and others would be uncompensated?
Lawyer Sellers replied that since Wal-Mart kept no records of its reasons for promotion or pay raises, 10 years later the best way to determine back pay is with a formula based on the records that do exist for seniority and job evaluations.
Justice Sotomayor: When would the company get a chance to show that an individual is not entitled to back pay? You're saying we should preclude them from doing anything but offering a mathematical model.
Justice Scalia: If a statistical model can replace witnesses and evidence, we have a pretty bad judicial system.
Nina Totenberg, NPR News, Washington.