High court correctly limits Wal-Mart case

Large retailers — the kind with deep enough pockets to attract the attention of the trial bar — breathed a sigh of relief Monday after the U.S. Supreme Court blocked a massive, class-action discrimination case that seven female employees had brought against Wal-Mart.

The ruling was not over whether discrimination occurred — that question could still be decided by a lower court — but whether it was justifiable to allow the case to proceed as a class action on the premise the company systematically paid women less than men and awarded fewer promotions to women in its 3,400 stores nationwide.

Allowing the case, Wal-Mart v. Dukes, to proceed as a class action could have turned more than 1 million current and former Wal-Mart female workers into plaintiffs and increased the potential liability of the respondent by billions of dollars.

In fact, ironically, Wal-Mart attorney Theodore Boutrous Jr. pointed out the company has 544 female store managers who conceivably could have been treated as both plaintiffs and defendants under such a class-action scenario.

Other big retailers had been watching the case closely, fearing they could be targeted for similar litigation based on nothing more than statistical evidence showing “too few” women in management positions.

The court split 5-4 along ideological lines, however, about whether the women had shown enough to prove there were common prejudices at work that resulted in discrimination at the world’s largest private employer.

On that question, Justice Antonin Scalia wrote for the conservative majority that while the women attempted “to make that showing by means of statistical and anecdotal evidence … their evidence falls well short.”

Justice Ruth Bader Ginsburg and the court’s three other liberals, on the other hand, embraced statistical regression analysis as ample to demonstrate a problem at Wal-Mart, where women fill 70 percent of the hourly jobs but make up only 33 percent of managers.

The dangers of allowing such statistics to replace real evidence — written documents or sworn accounts of oral instructions to promote less-qualified men over more-qualified women — should be obvious. Statistically, Asians fare better in winning admission to California colleges than any other racial or ethnic group. Is this proof that admissions officers there are purposely rigging the entrance requirements to favor Asians? No. It’s far more likely that Asian families place a great emphasis on academics.

Yet if the statistics were accepted as evidence, universities could be sued simply for admitting the best students, rather than following strict racial quotas.

The court ruled wisely Monday, helping America’s struggling retailers to dodge another politically correct bullet. Justice demands that individuals be treated individually, not as indistinguishable herds of would-be tort jackpot recipients, based on mere statistics divorced from actual showings of wrongdoing.

True employment discrimination, when provable, should be aggressively challenged. But a ruling for class-action status here could have devastated any hopes of job creation by a major industry in this country for decades to come.