Thursday, June 30, 2011


Joseph Heller’s novel, “Catch-22” tells the story of a group of bomber pilots and crew members in a fictional combat squadron stationed in Italy during World War II. All the pilots and crew members want to go home but a certain number of missions have to be flown in order for that to happen.

The problem is, that every time the crew members reach the required number of missions, that number is raised again. The only other way for anyone to get out of the unit is because of insanity.

The “catch” from the title is this: To be declared insane it is necessary for crew members to ask for a transfer based on insanity -- but asking for the transfer proves that crew members are sane because any sane person would want out of the unit.

Many female and former female employees of Wal-Mart have been placed in a similar situation by the right-thinking justices of the U.S. Supreme Court. It’s an interesting story that ends with a feat of legal sleight-of-hand that would have made Harry Houdini jealous.

The original case has been working its way through the judicial system for some time, most recently as a class-action suit, but the Supremes have now ruled that the plaintiffs don’t have enough in common to be called a “class.”

Women in 4000 or so Wal-Mart stores across the United States had claimed that the practice of leaving promotions to local managers, with no standard policy, led to generalized discrimination against female employees.

The Supreme Court agreed that Wal-Mart has no standard policy for promotions and for that very reason the class action suit couldn’t be allowed to proceed -- because Wal-Mart allowed mostly male managers a free hand in promotions.

More than 70 percent of Wal-Mart’s hourly workers are female, but women represent less than 10 percent of store managers and 4 percent of district managers, according to the lawsuit.

It’s pretty easy to see why current and former female employees might have begun to suspect a deliberate policy of corporate discrimination against women. Not so, ruled the majority of our nation’s highest court.

By implication, all the would-be plaintiffs in the class action suit had merely jumped to conclusions based on statistics. Mind you, statistics have been consistently used to prove other forms of discrimination, but the current Supremes are not big on legal precedents.

Individual lawsuits against Wal-Mart alleging discrimination can go forward, the Supremes said.

It will be more difficult, of course, because the Supreme Court has ruled that statistics don’t count – and in order to win discrimination suits, the individuals involved would have to talk their fellow employees, many still drawing Wal-Mart paychecks, into testifying on their behalf.

This would be some feat considering that the Supreme Court has just crushed an effort to make Wal-Mart accountable for how employees are treated.

It’s a novel approach to judicial thinking. Nobody denies that the policy of leaving promotions strictly to the discretion of mostly male managers has caused discrimination, but Wal-Mart the corporation can’t be held responsible because the people running it never created a fair, uniform code that covered all the 4,000 stores involved.

Furthermore, the Supremes didn’t even order Wal-Mart to fix the system-wide policy. Corporations have rights that apparently outweigh human rights. If the courts interfere with corporations, who knows what it will lead to – and who else has enough money to support politicians in the manner to which they have become accustomed?

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