Lawyers fishing for big payday

Justice does not come in one-size-fits-all.

On Tuesday the U.S. Supreme Court heard arguments in a 10-year-old case in which Wal-Mart is being accused of discriminating against seven of its female employees. The debate was not over whether discrimination occurred, but whether the case could become a class-action lawsuit, under the premise the company systematically paid women less than men and awarded fewer promotions to women in its 3,400 stores nationwide.

Turning the case into class-action litigation could turn more than 1 million current and former Wal-Mart female workers into plaintiffs and increase Wal-Mart's potential liability by billions of dollars.

The case, Wal-Mart v. Dukes, is being watched closely by businesses, who fear they could be targeted for equal employment opportunity litigation based on nothing more than statistics, and by plaintiffs' lawyers, who could rake in huge contingency fees.

A number of justices asked pointed questions about the practical application of trying to award fair compensation to so many diverse plaintiffs, some with major claims and some with no justifiable claims whatsoever. In fact, Wal-Mart's attorney, Theodore Boutrous Jr., pointed out that the company has 544 female store managers who could conceivably be treated as both plaintiffs and defendants under a class-action scenario.

There was also some question about apparently self-contradictory arguments from the women's attorney, Joseph Sellers. Justice Antonin Scalia complained, "I'm getting whipsawed here."

Justice Scalia said Mr. Sellers appeared to be arguing that the store managers were not well enough guided from headquarters in how to treat women fairly, but, conversely, that there also was "a strong corporate culture that guides all this. Well, which is it?"

Justice Scalia also scoffed at the concept of using a statistical model for the sake of efficiency to determine discrimination because the circumstances involved occurred a decade ago and memories are unreliable. "We should use that in jury trials, too, for really old cases. We should just put a statistical model before the jury and say, you know, this stuff is too old; so, we'll ... We'll do it on the basis of -- is this really due process?"

Justice demands that individuals and their specific circumstances be treated individually, not as some amorphous blob of would-be tort jackpot recipients based on vague statistical probability.

A ruling for class-action status could also devastate any hopes of job creation by major industries in this country for decades to come. This is not to say true employment discrimination should not be actively and aggressively pursued in the courts, merely that clumping everyone together into a statistical bale denies both sides true justice.