- Written by Peter S. Goodman
24 Jun 2011
POLITICS & THE LAW - 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.
Walmart has a habit of placing multiple orders with multiple factories for the same products, then forcing each to accept lower prices at the last minute or walk away with nothing.
By dint of its scale, it is able to capture the lowest prices for just about everything, from shipping to labor to contracting services. At its global procurement office in the southern China boomtown of Shenzhen, Walmart makes representatives from surrounding factories sit together in a bare-bones waiting room before they get a chance to negotiate with the retailer's agents.
Should the reps balk at Walmart's price, they know that the buying agent can just step out into the waiting room and find someone else from another factory -- someone desperate enough to deliver for whatever the company is paying. This is the power of being not only huge but organized into one entity.
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.
The court ruled that female workers may not be considered a class for the purposes of a lawsuit in which they accuse the company of years of gender discrimination, because they worked in many different stores in many different American communities, making their experiences effectively individual.
"Respondents wish to sue for millions of employment decisions at once," Justice Antonin Scalia wrote in the lead opinion for the court in the five votes to four decision supporting the giant retailer. "Without some glue holding together the alleged reasons for those decisions, it will be impossible to say that examination of all the class members' claims will produce a common answer to the crucial discrimination question."
As if to underscore the absurdity of this disparity, Scalia noted that Walmart has a written policy barring discrimination: The mere act of writing this down at headquarters somehow confers immunity against claims of a breach of that policy -- not that there's any glue providing coherence to the experience of workers as a class!
In other words, the fact that they happen to work for a single enormous employer whose decisions are so consequential that they alone can influence the prices of certain commodities does not amount to a common experience -- not in the minds of the most powerful arbiters in the land.
Rather, each Walmart is its own separate unit, for the purposes of the lawsuit. 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, [link] 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.
For the labor movement, this is a distressing development. Another crucial weapon in a diminishing arsenal -- the class action lawsuit -- has been effectively blunted, even as corporate employers gain new powers.
Last year, the Supreme Court decreed that corporations can essentially funnel as much money into political campaigns as they choose, unlike individuals. The realities of increasingly global trade has added to the options that management can employ as it arbitrages labor costs across every community, putting workers in Detroit in direct competition with their counterparts in Shenzhen.
And for American society writ large, the decision is nothing short of a disaster, a formal affirmation from the Supreme Court that huge corporations enjoy special rights denied to the people who depend on their wages to pay their bills.
Not lost on anyone is the simple fact of widening inequality, with increasing shares of the spoils of American commerce accruing to a narrowing group of people. Chief executives of huge companies are seeing their pay soar, while rank-and-file employees watch another year go by with essentially no raise -- if they are fortunate enough to be employed at all.
We are indeed becoming more like a gated community for the wealthiest Americans, with manicured lawns for those on the inside, and dumpster diving for the working class - -yes, class, a designation that exists by dint of economic reality, no high court affirmation required. The Supreme Court just reinforced the front gate.
(Peter S. Goodman writes for HuffingtonPost.com where this article was first posted.) -cw
Tags: Supreme Court, labor, Walmart, Scalia, inequality, China, Detroit, working class, business
Vol 9 Issue 50
Pub: June 24, 2011