Plaintiffs Betty Dukes, left, of Pittsburg, Calif., Deborah Gunter of… (Jacquelyn Martin, Associated…)
Reporting from Washington — Supreme Court justices, sharply divided along gender lines, appeared poised to reject a nationwide class-action suit that accuses Wal-Mart Stores Inc. of sex discrimination.
Led by Justices Anthony M. Kennedy and Antonin Scalia, the majority of men on the court questioned how Wal-Mart could be held liable for illegal sex bias when its 3,400 store managers across the nation decide who gets promoted and who receives pay raises.
"It's not clear to me: What's the unlawful policy that Wal-Mart has adopted?" Kennedy asked. The company's written policy calls for equal treatment without regard to race or sex.
But Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — who together mark the first time the court has had three women on the bench — asserted that a corporate policy of letting store managers decide on promotions could result in discrimination against women.
The statistics generated in the case so far strongly suggested that was what had occurred, they said.
A lawyer representing the female plaintiffs argued that Wal-Mart's corporate culture teaches mostly male supervisors that women are "less aggressive" than men and therefore less suited to being managers.
Unconvinced, Scalia called that "an assessment of why the percentage [of women in management] is different," but it is not evidence of an illegal policy. Wal-Mart does not say, "Don't promote women," he said.
"If you have an aggressive woman, promote her," Scalia added.
Ginsburg, who made her legal reputation in sex-discrimination law, said Wal-Mart's experience showed how gender bias could "creep" into the workplace. It isn't "at all complicated," she said.
"Most people prefer themselves. And so a decision-maker, all other things being equal, would prefer someone who looked like him," Ginsburg said.
The case heard Tuesday is the most important and far-reaching job-discrimination dispute to come before the high court in more than a decade. It could determine whether job-bias claims must proceed as individual lawsuits or instead could go ahead as broad, class-action claims that rely mostly on statistics.
The Berkeley lawyers who brought the sex-bias suit against the nation's largest retailer said about two-thirds of Wal-Mart's employees were women when the statistics were compiled five years ago, but men accounted for 86% of store managers.
The lawyers also said women were paid less across the country, even though they had more seniority on average than men.
At issue before the court was whether these findings would allow this single suit to proceed as a class-action claim on behalf of 1.6 million women who have worked for Wal-Mart since 1998. If so, it would be by far the largest job-bias case in American history.
But the tenor of Tuesday's argument suggested that the massive, decade-old suit may run aground before it can move toward a trial.
Although the more conservative-leaning justices on the high court seemed to be the most hostile to the case, nearly all of its members appeared troubled by aspects of the litigation.
Their concerns included how back pay would be awarded to class members and whether the company would be afforded an ample opportunity to defend itself against the accusations of discrimination.
A key, at least for what appeared to be a majority of justices, was whether Wal-Mart had in place policies that encouraged supervisors to treat female employees differently from men.
Wal-Mart's attorney, Theodore J. Boutrous of Los Angeles, argued that the company instead took a strong stand against discrimination and that any case of disparate pay or treatment was the product of rogue managers.
"They haven't shown a pattern across the map," Boutrous said.
Of the six men on the court, only Justice Stephen G. Breyer appeared inclined to vote in favor of the class action.
Several justices also seemed critical of a contention by the lawyer for the plaintiffs, Joseph M. Sellers, that Wal-Mart faced liability because it allowed its managers too much leeway in hiring and pay decisions.
"Wal-Mart provided to its managers unchecked discretion … that was used to pay men more than women," Sellers said.
That troubled Scalia. "Which is it?" he asked. "It's either individual supervisors who are left on their own or there is a strong corporate culture that tells you what to do.... If somebody tells you how to exercise discretion, you don't have discretion."
A ruling in Wal-Mart vs. Dukes is not likely until June.