In an opinion that is neither particularly surprising nor easy to refute in light of recent Supreme Court precedent, a federal court in California tossed out a claim by 150,000 women alleging discrimination by retail giant Walmart. This case was an effort to revive in somewhat smaller form a similar, larger suit against Walmart after the Supreme Court tossed that case out in 2011. The court’s opinion rejecting this attempt to revive the Walmart litigation was authored by Judge Charles Breyer, a Clinton appointee and brother of Supreme Court Justice Stephen Breyer.
When this case reached the Supreme Court in 2011, the plaintiffs presented statistical evidence suggesting widespread gender discrimination in Walmart’s hiring practices. As Justice Ruth Bader Ginsburg explained in her partial dissent, “[w]omen fill 70 percent of the hourly jobs in the retailer’s stores but make up only ’33 percent of management employees,’” and “the higher one looks in the organization the lower the percentage of women.” Nevertheless, the Court’s 5-4 decision held that the plaintiffs failed to demonstrate a “common mode” of discrimination against women that “pervades the entire company.”
Judge Breyer’s opinion concludes that, while the group of women seeking relief in his court is smaller than the class presented to the Supreme Court, they ultimately face the same problem as the larger class that confronted the Supreme Court. “[T]hough they have cut down the raw number of proposed class members significantly,” Breyer writes, “Plaintiffs continue to challenge four different kinds of decisions across hundreds of decision makers, inviting failures of proof at multiple points in each region.”
Had Breyer ruled in favor of this smaller class of Walmart women, it is unlikely that his opinion would have survived contact with a Supreme Court that’s grown increasingly hostile to class action lawsuits. Earlier this year, the justices tossed out a class action alleging that Comcast illegally obtained monopolies over various regional markets and then used this monopoly to overcharged its customers — resolving the case on a grounds that wasn’t even fully briefed in the process. More significantly, a pair of recent decisions effectively enable companies to immunize themselves from most class actions by refusing to do business with anyone who won’t sign away their right to file such a lawsuit.
The impact of these decisions is that many companies are now free to break many laws with impunity, so long as they do not take too much money at once. As ThinkProgress previously explained,
Class actions enable many individuals with similar legal claims to join together into a single lawsuit, and it is one of the most important mechanisms to ensure that relatively small dollar claims are actually vindicated in court. If a major corporation cheats a thousand of its workers out of a thousand dollars each, very few of them will decide it is worth the hassle and expense of a major lawsuit, and virtually no lawyer will be willing to take such a low dollar case on a contingency fee basis — meaning that the plaintiffs will have to pay more for legal counsel than they are likely to win in the end. If these thousand workers are able to join together into a class action, however, their million dollar claim suddenly becomes very attractive to top litigators — and the hassle of litigation will be virtually non-existent for most of the plaintiffs.