WASHINGTON - The U.S. Supreme Court dug into the details of Wal-Mart's alleged years of discrimination against the retail behemoth's own woman workers, trying to figure out whether those women as a class legally could sue the monster company.
In an high-octane back-and-forth oral argument March 29, several justices wondered whether the lawyers for the women were advancing a novel theory: that Wal-Mart kept tight rein over its thousands of store managers and yet gave them enough freedom to - combined with the slant in the training it gave them - practice widespread sexual discrimination in pay and promotions.
The justices are considering Wal-Mart's claim that the estimated 1.6 million present and former female workers at the retail megafirm have the right to sue it as a class for widespread, long-time discrimination in pay and promotions based on sex.
Wal-Mart, which has battled that right in the courts for a decade, says they must sue it one by one. And at one point in the March 29 hearing, Wal-Mart's attorney denied they could even do that. The actual case has yet to go to trial.
"The plaintiffs did not have to prove there was an actual policy of discrimination and that that was the company's policy, but they at least needed to point to a policy that was common and that linked all of these disparate individuals and disparate locations and different people together," Wal-Mart attorney Theodore Boutrous told Justice Samuel Alito.
"Their argument is the common policy is giving tens of thousands of individuals discretion to do whatever they want. That is not commonality. It's the opposite."
Justice Anthony Kennedy, considered the potential "swing vote" on the court, was even more skeptical than that.
"A city is not liable for a constitutional violation unless it has a policy. Would you think we could use that as an analogue to determine whether or not there is a common question here?" he asked.
"The analogue is that if a company had a policy, a general policy, of discrimination as opposed to here, where it's a general policy against discrimination, and (we) saw patterns throughout the company and because of sex, because of gender, continued to allow the pattern to exist, that would raise a different question," Boutrous replied.
Boutrous also claimed, to Chief Justice John Roberts, that if the women lost certification as a class - and thus couldn't sue Wal-Mart as a group - they couldn't sue individually, either.
The justices got Joseph Sellers, the attorney for the women, to describe what they were seeking, besides back wages, should they ever get to - and win - a class-action trial in lower courts. The case has been going for a decade with the two sides battling over the right to a class action, and not the facts of the discrimination itself.
"An injunction would look like a series of remedial measures that would direct Wal-Mart to provide for detailed criteria by which to make pay and promotion decisions that are job-related in a way that hasn't been true up until now. It would provide for it to hold managers accountable for the decisions they make. It would ensure effective oversight of these pay and promotion decisions," Sellers replied. "The company had allowed these problems to fester."
"The company did have, by the way, information regularly submitted to it about pay decisions, it took no action, and it did not effectively monitor" its managers, he said.
"What you need to do is show that there were disparities sufficiently substantial to create an inference of discrimination with respect to a discrete practice."
Roberts tried to get Sellers to compare Wal-Mart's pay policies to the wider society. Sellers, gently, said the point was to concentrate on Wal-Mart.
"Wal-Mart's obligation under Title VII" of the Civil Rights Act is to "ensure its managers do not make pay decisions because of sex, and the comparison that's relevant is between men and women at Wal-Mart, not the general population that includes people in retail, but includes railroad workers and all kinds of other people. That's not the appropriate comparison," Sellers replied.
"It's not clear to me: What is the unlawful policy that Wal-Mart has adopted, under your theory of the case?" Kennedy asked.
"Our theory is Wal-Mart provided to its managers unchecked discretion...that was used to pay women less than men who were doing the same work in the same facilities at the same time, even though those women had more seniority and higher performance, and" that Wal-Mart "provided fewer opportunities for promotion than women because of sex," Sellers replied.
"Your complaint faces in two directions," Kennedy concluded.
The justices will decide the case by June 30.