Archive for April 1st, 2011

What started off as an almost tongue-in-cheek line of questioning from Justice Antonin Scalia to attorney Joseph M. Sellers in Tuesday’s Wal-Mart v. Dukes oral argument has become the foundation for a watershed decision on gender equality:

JUSTICE SCALIA:  [what] your answer assumes is if there is a disparity between the advancement of women and the advancement of men, it can only be attributed to sex discrimination?
JUSTICE SCALIA: Well, otherwise, how could you say that all — all of the companies are –are are presumptively engaging in sex discrimination?
MR. SELLERS: Well, Justice Scalia, I –I — I want to deal with the — in this instance, we have — it’s not just any old analysis that we’re -that we’re using. We have statistical regression analysis that isolates and takes into account the factors such as performance and — and seniority.
JUSTICE SCALIA: See, I wasn’t talking about this case. I was talking about your answer to Justice Alito
MR. SELLERS: I’m sorry.
JUSTICE SCALIA: — which said that, you know, it may well be that every industry in the United States is guilty of sex discrimination
JUSTICE SCALIA: — unless there — you know, there — there’s equality of promotion for men and women.

In an opinion issued today, citing this very exchange, Justice Scalia himself has penned a unanimous decision that is already being called the most important employment rights decision in American jurisprudence.  The substance of the opinion, titled General Order Number 412011, is as short in length as it is long in its impact:

During oral argument, I mocked what I believed was an extreme position being taken by respondent’s counsel to make a point.  However, upon serious reflection, I have come to agree with the other members of the Court that the evidence is compelling.  It appears very likely that all companies, businesses, and institutions in this nation are in patent and ongoing violation of Title VII.  We hold today that any disparity in the advancement of men and women in the workplace is prima facie evidence of discrimination.  We realize that our ruling will have drastic and far-reaching implications for American businesses and other institutions, but we conclude that the text of Title VII requires it.  Any relief from the effects of Title VII should come from the legislative branch.

Accordingly, it is hereby ORDERED that all employers who are subject to the jurisdiction of this Court must, within 10 days from the date of this opinion, ensure that each level of the business or organization is staffed with an equal number of men and women, who are to receive identical pay for substantially similar job functions.  Any employer that cannot comply with this order must show cause within 10 days why it cannot comply.  Until an employer can prove compliance or its compliance obligations are relieved through clear and convincing evidence of impossibility, the employer shall have no power to conduct any business or official act.

Slip op. at 1.

The North American Chamber of Commerce immediately blasted the decision, calling it the “most blatant example of judicial activism in the history of the United States Supreme Court.”  “We’re simply speechless,” added spokesman William Baggins.  “Without immediate Congressional intervention, this decision will bring the U.S. economic sector to a complete standstill.  The compliance costs alone will cripple the economy.”

Sidney Sauron, president of the pro-plaintiff organization, the American Association of Class Action Advocates (AACAA), had mixed feelings about the ruling.  “Of course, we agree with the ruling.  However, it does raise some practical issues for our member firms.  We are not aware of any firm that is currently in compliance with the injunction’s requirements.”

Efforts for Congressional reform have hit a roadblock.  It is unlikely as a practical matter that Congress can draft and enact appropriate legislation amending Title VII, and the ruling appears to apply to governmental institutions as well as private businesses.  As a result, once the injunction takes effect, neither house of Congress will be in compliance, and Congress may be powerless to act.

Opponents have one last-ditch strategy for avoiding the ruling’s effect, says Purdue University Law School professor and constitutional scholar Robert Gandalf.  “Because the Court itself lacks the gender equality that would make it compliant with the injunction, the decision to enter the injunction may be an ultra vires act under Article III of the United States Constitution.  As I see it, an emergency motion attacking the Court’s jurisdiction is the only way to avoid a constitutional crisis.”

Stay tuned to ClassActionBlawg for further updates…

Editor’s Note – Comments to this article are welcome, but PLEASE see consider the DATE of the posting before you do.  Happy April Fools Day.

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