In the Supreme Court's 5-4 ruling in favor of Walmart in a gender bias suit decided earlier today, it's clear that the majority decision ignored the idea of "corporate culture" -- the unspoken but prevailing attitudes that exist in every workplace and every company -- and instead focused on whether or not a "company policy" exists that treats women differently from men.
The basis of the lawsuit -- that Walmart routinely discriminates against female employees in terms of pay and promotion to management positions -- hinged on the idea of a class action that could have included all women who have worked at Walmart since December 1998. The original complaint, brought by a group of six women a decade ago, swelled as more and more women joined the suit. The women accused Walmart of functioning as "an old boy culture and and old-boy network in terms of pay and promotions" in the words of Terry Moran reporting for ABC World News earlier this year.
What's frustrating to women is that corporate culture, though powerful and influential, is not actionable. If gender bias isn't codified by a company (and seriously - what company would put it in writing?) it's hard to prove as today's Supreme Court ruling illustrates.
But if you were a female manager required to attend a meeting with male colleagues at a strip club or Hooters Restaurant (known for their well-endowed female waitstaff attired in low-cut shirts), how would you feel and what would that tell you about a company's attitude toward women? Some female Walmart managers have testified that the above scenario happened to them.
One of the original plaintiffs in the case tells a story with a similar underlying theme. As ABC World News reported back in March:
When Christine Kwapnoski of Concord, Calif., told her boss at a division of Walmart that she wanted a job promotion, she said, he told her to "blow the cobwebs off your make up" and to "doll up" in order to advance.
Yet the five-member all-male majority -- led by Justice Antonin Scalia writing the opinion -- refused to permit a class action suit against Walmart to move forward because the plaintiffs failed to provide "convincing proof of a companywide discriminatory pay and promotion policy."
However, the four-member minority -- comprised of Justices Ruth Bader Ginsberg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan -- felt that the burden of proof was met according to the Los Angeles Times:
In a partial dissent, Justice Ruth Bader Ginsburg said there was enough evidence of systematic sex discrimination to allow the suit to proceed, though not for damages. "Women fill 70% of the hourly jobs in the retailer's stores, but make up only 33% of the management employees," she wrote. "The higher one looks in the organization, the lower the percentage of women."
Giving managers a free hand to make pay decisions could lead to discrimination, she added. "Managers, like all humankind, may be prey to the biases of which they are unaware," she said.
What does this mean for the average female worker? Without the protection and benefits of a class action lawsuit, virtually no woman employed as an hourly worker would have the financial ability to pursue a case against a corporation willing to spend millions on litigation. While every Justice on the 9-member Court felt that the lawsuit was problematic because it sought to obtain back pay for the women, the minority felt that the class action suit should have been allowed to proceed.
By shutting the door on the women of Walmart, the Supreme Court decision will have a domino effect, toppling any chance women may have in winning other high-profile gender discrimination cases involving large corporations. As Bloomberg reports:
The ruling may help companies facing similar suits. Units of Cigna Corp. (CI), Goldman Sachs Group Inc. (GS), Bayer AG (BAYN),Toshiba Corp. (6502), Publicis Group SA, Deere & Co. (DE) and Costco Wholesale Corp. (COST) all face gender discrimination complaints that seek class-action status. More than 20 companies supported Wal-Mart at the Supreme Court, including Intel Corp. (INTC), Altria Group Inc. (MO), Bank of America Corp. (BAC), Microsoft Corp. (MSFT) and General Electric Co. (GE)
Have you ever faced gender bias at work? What kinds of workplace discrimination have you put up with?