A gender gap emerged at the US Supreme Court as the court’s three female justices tussled with their male colleagues over a nationwide discrimination suit against Walmart Stores.
Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan all voiced at least qualified support yesterday for the class-action suit, which claims women across the country were victimised by Walmart’s practice of letting local managers make subjective decisions about pay and promotions. The dispute marks the first gender-bias case the court has considered with three women on the bench.
The three took the lead in questioning Walmart’s attorney, Theodore Boutrous. Ginsburg spoke about how corporate decision-makers tend to hire people like themselves, while Sotomayor endorsed the use of statistical analysis in discrimination cases. Kagan balked when Boutrous said the workers’ case was based on an “incoherent theory”.
“I guess I’m just a little bit confused as to why excessive subjectivity is not a policy that can be alleged” as the basis of a job-discrimination suit, said Kagan, the newest justice.
Their queries put them at odds with Justices Antonin Scalia and Anthony Kennedy, who questioned whether the women had pointed to a corporate policy that violated their rights under the main federal job-bias law, known as Title VII. The justices are considering whether potentially a million female employees at Walmart have enough in common to warrant allowing a single nationwide suit against the company.
Scalia said the company had an “announced policy against sex discrimination” and expressed disbelief when the lawyer representing the women argued that the reality was just the opposite.
“Do you think you’ve adequately shown that that policy is a fraud and that what’s really going on is that there is a central policy that promotes discrimination against women?” Scalia said.
Ginsburg, who was a leading anti-discrimination advocate before she became a judge, left little doubt that she took a different view about the pervasiveness of gender bias in the workplace.
