The Corner

Misrepresenting the Walmart Case

Not for the first time, Slate legal writer Dahlia Lithwick misdescribes the Supreme Court’s Walmart decision. “Start with one of the most important cases of the term, the recently deceased class-action suit filed by a million and a half women employed by Wal-Mart.” No. One and a half million women did not file a lawsuit. Lawyers sought to represent them and were rebuffed. That was the meat of the case.

It gets worse. “Then Scalia went one further and offered Wal-Mart, the largest private employer in the country, a virtual guidebook on how to discriminate better: Do it in bulk up and down the chain of command, and make certain to do it at every possible level. . . . The greatest impact of the Wal-Mart decision isn’t the blow dealt to class-action suits. It’s the guidance it provides employers: Immunize yourself from claims of gender discrimination with a written policy that says “we don’t discriminate” and a system of decentralized decision-making” (emphasis in original).

So if a company allows decentralized decision-making on personnel issues, that amounts to discrimination “up and down the chain of command” — moreover, to a deliberate decision to engage in discrimination. Not even the liberal justices on the court bought that idea. Nobody reading this article would have any idea of what the Walmart case was actually about.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.


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