Reflecting on the Wal-Mart class-action lawsuit

Opening statement:

I’m going to use the recent Supreme Court decision in favor of Wal-Mart to make some larger points concerning the need for fundamental legal reform in the United States.

Today’s highlights:

·       Possible need for constitutional amendment to allow for Congress to review Supreme Court decisions;

·       Reforming the class-action lawsuit system;

·       The need for an ombudsman;

·       Creating an unfettered jury system;

·       Increasing access to and decreasing expense of the legal system.

The basic Wal-Mart case:

A Chicago Tribune newspaper editorial summarized as follows:

QUOTE:

The U.S. Supreme Court decision Monday in a case alleging sex-discrimination at Wal-Mart prompted a predictable reaction over the course of the week: Big business won, workers lost.

Not so. The ruling will restore the integrity of the class-action legal system, but it will not deny wronged workers their day in court.

This case revolved around a massive lawsuit brought on behalf of up to 1.6 million women who have worked at the giant retailer since 1998. The suit accused local Wal-Mart managers across the nation of using their discretion over pay and promotions to favor men. Wal-Mart disputed that there was a systemic policy of discrimination that led to unfair treatment. A California court had certified the case as a class action, and the Ninth Circuit Court of Appeals upheld that ruling.

:UNQUOTE [source: Chicago Tribune, June 25, 2011]

Some observations based on the article quoted above:

·       Of course, with this particular ruling, big business won and the workers lost. That is exactly what happened – so far.

·       Don’t let anybody tell you the Supreme Court isn’t politically motivated. To rule against Wal-Mart might have hurt our economic recovery – which would have displeased the Elite. Another example: For those who wonder why the High Court really “legalized” abortions via Roe vs. Wade, it’s quite simple: The Powers-that-Be decided an expedient means was needed to defuse the ghetto, which seemed at the time about ready to explode into full-scale urban warfare. Single-mom families (burdened with the prospect of yet another baby – this one unwanted) could have helped further destabilize our already shaky inner-cities.

·       How does this ruling “restore the integrity of the class-action legal system?” A California court and the Ninth Circuit court didn’t seem to think integrity was at stake here. Maybe those judges were suffering from a learning disability, which (of course) never afflicts the SCOTUS.

·       (Ultimately) the wronged workers won’t be denied their day in court? Define “ultimately,” White Man! It’s always harder for a small group of workers (or an individual) to succeed in court. For one thing, the expense is truly daunting and the process is time-consuming.

·       The article cites “managers…using their discretion [my emphasis] over pay and promotions.” Does that mean managers are actually allowed to discriminate? That would run up against Wal-Mart’s Non-Discrimination policy which says, “Walmart will not tolerate discrimination in employment, employment-related decisions…” Maybe the article meant to say, “managers…using generally-accepted standards to determine pay and promotions.”

·       The article doesn’t indicate if workers who felt they had been improperly evaluated by direct supervisors had lodged any formal complaints with upper management during the decade in question. If Wal-Mart has a Non-Discrimination policy, it would make sense that it would also have a corporate mechanism in place for redress of grievances.

Why the Wal-Mart workers should have prevailed

By “prevailed,” as used in the heading above, I mean “been allowed to proceed as a class-action lawsuit.”

The Chicago Tribune article (cited above) states:

“Moreover, a class-action judgment in this case would improperly lead to a one-size-fits-all remedy. If some women were seriously wronged, they might deserve significantly more compensation that others, the court said.”

[and]

“The lawyers collect millions, the victims collect $5 off coupons good for their next oil change.”

As for one-size-fits-all remedy, if that’s the current state of our class-action system, that needs to be changed. Allowing multiple parties, even though their injuries aren’t equal, to join as a class in a lawsuit falls within the realm of common sense. By allowing a mass of workers to sue one company for injuries sustained over a decade should actually make it easier to determine if there had been any statistically significant abuse attributable to the de facto corporate culture. And the expense involved in fact-finding could have been better borne by a larger pool of litigants. I am assuming, of course, that all parties involved, including the High Court, are interested in making “it easier to determine.” That is, are concerns that justice be done at all relevant?

We’re talking about measurable quantities here: Comparisons of pay and promotion between male and female employees over a significant period of time. Any one particular employee or employees working in one Wal-Mart store would have a hard time proving systemic abuse. If the entire class of women were found to have suffered from discrimination, why shouldn’t those who’d suffered more be allowed to recover more damages? The amount in lost wages should be easy enough to calculate.

The Tribune article is being dodgy by trying to compare loss of wages, which could vary widely within a large group of workers, with a situation in which “victims collect $5 off coupons good for their next oil change.” However, if that is in fact an accurate comparison, our class-action system definitely needs an overhaul.

Some larger considerations

Introducing an alternate system

I am in favor of an ombudsman system in which individuals who feel they have been wronged, especially on the job, can seek relief without having to pay a lawyer – or anybody else for that matter. Suppose a complaint is lodged (free of charge) with an ombudsman, who investigates and finds in favor of the complainant. Damages are awarded, which can then be appealed to a court. However, if the defendant does not prevail in court, punitive damages should be awarded on top of the original amount. And these damages would increase for each succeeding case in which a [different] complainant challenging the same employer on similar grounds wins a favorable ruling.

Corporations or entities which lose should be forced to compensate the ombudsman for all costs incurred in the performance of his duties.

This would prevent abuses from piling up over a substantial period of time – which, in the case of Wal-Mart, exceeded ten years. After all, justice delayed is justice denied. On the other hand, if Wal-Mart had not been allowed to exploit its female work force, perhaps that company wouldn’t have prospered as it did. However, it should not be the job of the courts to assure corporate profitability.

What about an unfettered jury system?

This might be overly idealistic, but I’ll put it on the table anyway. How about allowing an unfettered jury to decide matters of fact and law? Such a jury would not need a judge, but would elect one of its one to sit in place of a judge in order to act as moderator. Such a jury would not be prevented from considering any and all facts, whether “prejudicial” or not. The very idea is repugnant: That a jury needs a judge to deny to them information which he feels is prejudicial. This jury would be empowered to seek out any information it pleases if it should choose to consider more than what the opposing attorneys chose to present; these citizens would also have the power to subpoena.

Some purists would protest claiming we’d be encouraging crude street justice. However, I think of it as allowing the common sense of We-the-People a chance to manifest itself. Again, an unfettered jury.

The role of Congress

What I am about to propose might require a Constitutional amendment – or might be part of any replacement Constitution which might come to pass.

If Congress disagrees with any final, “highest-level” federal court decision, it should have the right to overrule that decision by means of a simple majority of both Houses – excluding the President (who of course is only one man). Laws cannot be passed without Congress, which surely must know what each law it passed was intended to “mean.” If the Courts rule in opposition to that meaning, the Congress should have the right to make any necessary correction. Why should the Supreme Court, which consists of only 9 members and often rules on a 5-4 basis, be allowed to determine what Congress had meant when passing its various laws?

Concluding statement

All I can do here is offer food for thought. Even if I were to become the next president, I could not overhaul our convoluted and increasingly unfair legal system single-handedly. I would need help – your help – to come up with ideas and to help elect that Independent Congress which can make all these good things happen.

Steven Searle for US President in 2012

Founder of The Independent Contractors’ Party

“A society that doesn’t care about justice for all will soon find it has ‘justice’ only for the very few.”

Contact me at bpa_cinc@yahoo.com