The Supreme Court’s ruling to throw out the sex discrimination class action lawsuit against Wal-mart undermines employment rights of women of color.
First to the ruling. The Court ruled that women did not show that Wal-Mart had a policy of discrimination. Since each Wal-Mart supervisor has discretion over pay and promotion, Justice Scalia concluded there was no “glue holding the alleged reasons for all those decisions together.”
Justice Ginsburg, joined by the Court’s three liberal justices, dissented on this point. Citing evidence that “gender bias suffused Wal-mart company culture,” Ginsburg affirmed, “managers, like all humankind, may be prey to biases of which they are unaware.”
While all the plaintiffs in the case were women, thirty five percent were women of color and Betty Dukes, the case’s namesake and employee of the Pittsburg, CA store, is African American.
To be sure, plaintiffs identified as women when they appealed to “sex” in Title VII of the 1964 Civil Rights Act, which prohibits discrimination in employment according to a person’s race, color, religion, sex, or national origin. Women made specific sex discrimination claims, including that Wal-Mart paid women less in nearly every job category, even though women had, on average, better performance evaluations and more seniority.
But women of color may experience multiple hidden of biases to which Ginsburg referred. In fact, an overlap of sex and race discrimination shaped the history of Title VII and indicates damaging effects of this landmark decision.
The word “sex” was a last minute amendment to Title VII of the House’s version of the Civil Rights Act and was expected to be removed by the Senate. Opponents of “sex” charged it would distract from the primary goal ending discrimination against blacks. But a group of feminist lawyers saw a chance to forward women’s rights. Among them was Pauli Murray, an employment law expert, whom the group tapped to write a memo in support of retaining “sex.”
Murray laid out a number of parallels between race discrimination (which Senators were ready to legislate against) and sex discrimination (which was largely overlooked). But Murray insisted that rather than merely parallel, race and sex discrimination were connected.
Standing at the intersection of the century’s two great social movements, Pauli Murray argued that “these two types of discrimination are so closely intertwined and so similar that [black] women are uniquely qualified to affirm their interrelatedness.” Including “sex” in Title VII would protect blacks, because, like Murray herself, many black workers were also women.
Murray’s memo was sent to influential Senators, Attorney General Kennedy, and Lady Bird Johnson, with a request that she pass it along to her husband. Murray was convincing: The Senate retained “sex” in Title VII.
The Court weakened Title VII when it ruled that a company is not liable when its managers use their discretion to pay millions of women unfairly. This is especially foreboding for women of color. The Court’s rejection of a cut-and-dried sex discrimination claim suggests it be unlikely to recognize complex claims that women of color may bring.
In 1964 Murray attested that women of color experience an intersection of sex and race discrimination. Contemporary wage-gap statistics confirm this: while white women earn 77% of what white men earn, black women earn 62% and Hispanic women just 53% of what white men earn.
How can we respond to this ruling? Murray’s legacy urges that we push for laws to fight unequal pay and that we expand our moral imagination about civil rights.
The Paycheck Fairness Act of 2011 requires employers to prove pay differentials result from a factor other than sex and increases penalties for equal pay violations. President Obama supports it and the House passed an identical version of the bill with bi-partisan support in 2010. In the wake of the Wal-Mart ruling, the Paycheck Fairness Act would be an important tool for women of color to confront wide pay gaps.
The Wal-Mart ruling challenges us to enrich women’s rights. Too often sex discrimination is “whitewashed”: it is overlooked that women are all colors and, thus, we fail to identify and are unable address patterns of persistent inequality. We should analyze the multiplicity inherent in sex discrimination and its impact on the American workforce. Only then, can we assess what the Court’s ruling means for all women.