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It’s not surprising that all three female judges on the court, all of whom have most likely endured various forms of socially sanctioned discrimination in the past, ruled in favor of the Wal-Mart women. Ms. Ginsberg built a career, in part, prosecuting sex discrimination cases.
The most disturbing danger here is not that Scalia and the other four judges that sided with him seem to deny the continued existence of “good old boy” networks as forms of widespread discrimination that company policies can condone or mitigate. The most disturbing danger is that the Supreme Court has now created a precedent whereby plaintiffs, just to move past the pleading stage, must actually prove common harm according to evidentiary standards that are out of sync with the reality of how contemporary sexism most often functions in the workplace. Joanne Bamberger, a blogger at PunditMom and a lawyer, by training, calls this ruling “the most activist judicial move I’ve seen in a long time.”
The irony, of course, is that the feminist movement has done such a good job fighting against institutional sexism, that it is now faced with an enemy that has – in a sense – gone underground. It’s unlikely that male managers at Wal-Mart, even in conservative regions of the country, would feel entitled to advertise their preferences for promoting men, but they still feel just fine inviting the guys from work to Hooters for a managers’ meeting – as real life evidence from the plaintiffs illustrated.
The women of Wal-Mart may not constitute a “class” in Scalia’s antiquated vision, but they will continue on as a collective. This week’s decision did not determine whether Wal-Mart has discriminated against individual women, so Joseph M. Sellers, a lawyer for the plaintiffs, told The New York Times that his clients are “determined to move forward” by filing individual claims with the Equal Employment Opportunity Commission. He plans on filing up to several thousand within the next couple of months.
Feminists are famous for arguing that the personal is political; in this case, the cultural is pivotal. It’s a shame some of our nation’s most esteemed judges were apparently not able to recognize that.
Courtney E. Martin is the author of “Do It Anyway: The New Generation of Activists,” "Perfect Girls, Starving Daughters: The Frightening New Normalcy of Hating Your Body," and coeditor of the anthology "Click: When We Knew We Were Feminists." She is an editor at feministing.com and senior correspondent at The American Prospect.