The criticism of the U.S. Supreme Court’s rejection of a class action gender discrimination lawsuit this week continues to flow in. The decision was not unexpected, given the conservative slant of the Supreme Court these days. Nevertheless, the criticism has been fast, widespread, and scathing. American Workplace Law Prof has a nice consolidation here.
Here is an interesting and angry take on the case from the Huffington Post. Some excerpts:
Thank the Supreme Court for one thing: In its appalling decision in the Walmart gender discrimination case handed down Monday, the justices supplied future historians with a brilliant symbol of how the United States has essentially become a giant gated community enjoyed by the powerful, with most of the citizenry living outside and struggling to nourish themselves.
Walmart is nothing if not a monument to the benefits of mass organization, an exemplar of all the good things that can be extracted by those who assemble themselves into a single large-scale entity. As the largest retailer on earth, the company is generally able to dictate the terms of trade with the thousands of merchants who keep the shelves of its stores stocked with cut-rate goods, tapping factories in China and middlemen traders in Latin America.Strip away the myriad technicalities, and what the Supreme Court essentially decreed this week is that Walmart’s employees — or really any group of people who happen to work for a colossal corporation — are not entitled to organize themselves similarly to enhance their power to pursue their own interests.
Walmart gets to be a behemoth when it is setting the prices for the patio furniture and volleyball sets that it purchases from factories in Mexico and China, but when its employees want to band together to address alleged abuses in the court system, suddenly the Walmart corporation might just as well be a collection of little mom-and-pop shops that happen to have the same name.
The court suggested that the Walmart workers could pursue relief to their claims by filing their own individual lawsuits, but that is no option for low-wage employees who typically earn so little that many rely upon food stamps, say labor experts. (Another wonderful American story: Taxpayers subsidizing giant, publicly traded corporations by keeping their low-wage employees alive. But I digress.)
For the workers, this legal “solution” amounts to the equivalent of asking Walmart to negotiate directly with every factory that produces its products on an individual basis, and not impose the price by wielding the power of its scale.
A key point in the Huffington piece is that Walmart represents the pinnacle of collective power in Western society, a consolidation of capital (shareholders) held together by favourable corporate laws that permit Walmart, through it collective power, to impose its will on suppliers and employees alike. However, the moment employees try to come together to obtain their legal entitlements, the Court steps in and says “that’s not right, it wouldn’t be fair to Walmart to allow employees to act collectively.” Do you buy that argument?
Here in Canada, we had a similar moment of bizarreness in our own Supreme Court of Canada case involving Walmart a couple of years ago. It was a line written by Justice Ian Binnie in Plourde v. Wal-Mart Canada. In explaining why the Quebec labour legislation at issue in that case did not prohibit Walmart from closing and firing all of its employees in order to avoid a union, he wrote this eye-opener:
Care must be taken not only to avoid upsetting the balance the legislature has struck in the Code taken as a whole, but not to hand to one side (labour) a lopsided advantage because employees bargain through their union (and can thereby invoke freedom of association) whereas employers, for the most part, bargain individually.
Labour law scholars around the world were stunned into silence (briefly) by that sentence, especially as it came from a Supreme Court justice in a so-called advanced legal system. To describe Walmart — the largest example of state-sanctioned and assisted collective capital in the history of the world– as an “individual” put at unfair disadvantage by its employees organizing as a collective is so bizarre as to defy explanation. Perhaps Justice Binnie is retiring a few years too late…