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Decision went too far; Walmart ruling should spur Congress to review laws on class action cases

The Supreme Court's 5-4 decision protecting Walmart from a class action lawsuit on behalf of as many as 1.5 million female employees undercuts the ability of groups of people to seek redress in the courts. The ruling was not without merit, but it went too far in undermining the legitimate interests of those seeking to prove a systematic bias. The ruling should awaken Congress to its need to review the laws on class actions.

Some facts are clear. Statistics offered by the plaintiffs showed that only 33 percent of management positions were held by women, compared to 70 percent of hourly jobs. Women became scarcer the higher up the ladder you went and the salary gap widened over time between men and women hired at the same time for the same position. Does that prove discrimination? Maybe, maybe not. That's what courts are there to determine. With the Supreme Court's ruling, that won't happen in this case.

In other ways, the case was less clear. The class action was filed to include every woman who had worked for the company since December 1998 -- 1.5 million workers. How do you prove that each one of those 1.5 million women was discriminated against, especially given that some, in fact, did rise into management positions? It would have made a fine payday for the plaintiffs' lawyers had the case succeeded, but they may have created too big a group.

Yet where does that leave the women who, according to those statistics, apparently did suffer discrimination? Just because there is a corporate-level anti-discrimination policy doesn't mean the policy was followed. The court's ruling, delivered by Justice Antonin Scalia, undercut the women's case -- and other class action cases going forward -- by finding that the plaintiffs could not show that they would receive "a common answer to the crucial question, why was I disfavored?" Because the corporation had a policy against discrimination but granted local managers substantial discretion, the women could not possibly offer a single answer to the question. Because many women were involved in many different situations, they were defeated from the outset.

It's not uncommon for large organizations to offer discretion to their outposts, of course. It makes sense culturally, climatically and economically. A store in South Carolina or New Mexico may have legitimately different needs than one in Michigan or Maine. Yet the notion that lack of commonality -- perhaps even a strategic one -- can block an otherwise legitimate class action complaint is preposterous.

A case involving 1.5 million plaintiffs may not make the best model for reconfiguring class action law, but something is amiss when statistics such as the progressive wage gap for men and women can be produced and then summarily rejected. The case was imperfect, but so was the Supreme Court's ruling. Congress needs to intervene to clear up the law.

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