And with a bench now fully one-third female, at least three justices in the nine-member court did not need much convincing to fully grasp the sting of gender discrimination.
The justices did not hear the actual case but instead were considering whether the lawsuit should move forward as a class action suit on behalf of all current and former female employees of Walmart since 1998. If this happens, it would also become the largest employment-class action lawsuit ever heard. Reuters compiled a quick overview of the key facts and allegations, while previously the About.com Women's Issues blog detailed why the class action designation would be so essential to the female plaintiffs.
News reports on the hearings did a good job of representing the concerns of the justices over whether or not a handful of plaintiffs -- supported by statistical information about workplace gender discrepancies within the Walmart chain -- can adequately represent what could be well over millions of female employees. But an examination of the actual transcript of the oral arguments reveals the finer points made by the female justices who understand what subtle, systemic bias looks like -- and the missteps of one male justice who seemed to completely miss the boat.
Several blogs that focus on class action and employment/labor litigation linked to the Walmart vs. Dukes transcript. Yet summations of arguments and questions cannot do justice to the passion and intensity of the queries put forth by the female justices who were trying to make valid points within the context of the gender bias case. What follows are excerpts that spotlight a few of the questions from Justices Ginsberg, Sotomayor and Kagan to show how their experiences as women -- especially women working in a male-dominated field -- informed their thinking. Likewise, an excerpt of an exchange involving Justice Scalia shows how he either willfully refused to "get it" or simply could not comprehend the underlying issues.
Below Justice Ruth Ginsburg questions attorney Theodore Boutrous, Jr., representing Walmart, about the company's obligations to its female employees:
JUSTICE GINSBURG: The company gets reports month after month showing that women are disproportionately passed over for promotion, and there is a pay gap between men and women doing the same job. It happens not once, but twice. Isn't there some responsibility on the company to say, is gender discrimination at work, and if it is, isn't there an obligation to stop it?
Next, Justice Sonia Sotomayor responds to criticism put forth by Boutrous that the expert cited by the plaintiffs used statistical information that -- in Boutrous's opinion -- didn't back up claims of gender discrimination regarding disparities in pay and job promotion:
BOUTROS: ...[T]hey just added everything together. They haven't shown a pattern across the map. They've added all the data together and pointed to disparities, some of which mirror some of the -- the statistics that -
JUSTICE SOTOMAYOR: Counsel, I thought their expert didn't aggregate them together. He did it regionally, not store by store, as your expert did, number one; and, number two, that he performed...any number of controlled variable comparisons, including job history, job ratings, and other things, and found that the disparity could not be explained on any of the normal variables that one would expect and that the disparity was significantly much higher than the 10 competitors of Wal-Mart and what they were paying their labor force.
At one point, Justice Ginsburg's commentary shows the depth of her expertise on sexual discrimination lawsuits when she cites a landmark case that proved that male managers tended to hire males because they subconsciously preferred people whom they shared similar characteristics with such as gender:
JUSTICE GINSBURG: Mr. Boutrous, there was a case, it was in the '70s, and it was a class action against AT&T for, I think, promotion into middle management. What was at issue there was a part -- a test, part objective, but then in the end, the final step was a so-called total person test, and women disproportionately flunked at that total person.
And the idea wasn't at all complicated. It was that most people prefer themselves; and so, a decisionmaker, all other things being equal, would prefer someone that looked like him. And that was found, that total -- the application of that total person concept was found to be a violation of Title VII.
This sounds quite similar. I mean, it's not just -- it's not subjective. You have an expert -- I know you have some questions about that expert -- but the expert saying that gender bias can creep into a system like that simply because of the natural phenomenon that people tend to feel comfortable with people like themselves.
In a debate over whether or not the lawsuit qualifies as a class action suit, Boutrous attempts to make his point but is rebuffed by Justice Elena Kagan who feels his argument places too great a burden on the plaintiffs:
MR.BOUTROUS:...[T]his is a class action. The question here is whether that we can assume that every decisionmaker acted in the same manner in a way that had in this Court's words the same injury....That assumption is not supported by the record. That's why there's not the kind of cohesion that's necessary to protect the rights of the absent class members and the defendant. The -- the -- the other -
JUSTICE KAGAN: Mr. Boutrous, I think that that suggests that the plaintiffs would have to demonstrate discrimination in every individual case, and that's never been the law. All that the plaintiffs have to demonstrate and, especially at this stage in the proceedings, is that there is a practice, a policy of subjectivity that on the whole results in discrimination against women, not that each one of these women in the class were themselves discriminated against.