She added, “The women of Wal-Mart – together with women everywhere – will now face a far steeper road to challenge and correct pay and other forms of discrimination in the workplace.”
The Wal-Mart litigation is not necessarily over. The female employees can file individual lawsuits claiming discrimination and seeking back pay. They could also break the massive lawsuit down into smaller, more focused lawsuits.
In reaching its decision, the high court rejected what it called “Trial by Formula.”
Writing for five members of the court, Justice Antonin Scalia said that under federal rules of civil procedure the class action lawsuit again Wal-Mart should not have been approved because it lacked a single common question tying each employee’s claims together for efficient resolution in a single trial.
“Here respondents wish to sue about literally millions of employment decisions at once,” Justice Scalia wrote. “Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.”
Scalia quoted an earlier dissent in the case written by Ninth Circuit Chief Judge Alex Kozinski. He wrote that members of the class “held a multitude of different jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed…. Some thrived while others did poorly. They have little in common but their sex and this lawsuit.”
Justice Ruth Bader Ginsburg and three other members of the court dissented to that portion of Scalia’s decision, saying they would have decided the case on narrower grounds.