It's not as if I thought the current Supreme Court would actually produce a majority decision that recognized the overwhelming statistical evidence for systematic, nationwide discrimination against the female employees of Wal-Mart in salary and promotion. And, since they did not in fact do so, we can at least seek solace in the text of the decision, in which the perpetual arguments about discrimination and unconscious bias are dramatically displayed.
All but one of the men of the US Supreme Court decided that the female employees of Wal-Mart did not have enough in common to represent a class that could bring suit because Wal-Mart gives its individual managers (>65% of whom are men) so much individual discretion in personnel decisions. Also, Wal-Mart forbids discrimination -- they have a policy! Never mind what the data show. As long as individual managers are discriminating against individual women without specifically saying that they are doing so, and as long as Wal-Mart doesn't have a formal policy that endorses discrimination, female employees as a group don't have much in common.
Ruth Bader Ginsburg's dissent makes this point:
"The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects," she writes. "Managers, like all humankind, may be prey to biases of which they are unaware."
At least 5 Supreme Court justices are prey to biases of which they and everyone else are well aware, with dire consequences for real people (but not major corporations) in this country.
PS - In recognition of this major defeat to more than 1.5 million women, this is the headline that The New York Times came up with:
Wal-Mart Case Is a Blow for Big Cases and Their Lawyers
Well, some of those lawyers may well be women, so it's not as if that headline totally misses the mark.
1 year ago