Feminist Philosophers

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The Wal-Mart Case and Indirect Discrimination June 28, 2011

Filed under: discrimination,work — Jender @ 5:58 pm

As noted here and here, the Supreme Court has ruled that the women of the class action discrimination lawsuit don’t have enough in common to constitute a class for this purpose. A crucial part of the reasoning behind this seems to be the claim that there was nothing systematic involved in denying women promotions and pay increases: these decisions were devolved to individual managers, and the corporation had a clear anti-discrimination policy. So it must have been just a bunch of individual decisions– no reason to believe there’s a pattern.

But there’s a nice argument from Nelson Lichtenstein that this is not the case: Walmart required managers to work 50 hour weeks on a regular basis, and 80-90 hour weeks occasionally. It also demanded that nearly everyone promoted to managerial ranks move to a different store, often hundreds of miles away. All this, quite obviously, disadvantages women. The idea that policies like this unfairly disadvantage women will be a familiar thought to feminist philosophers. Susan Moller Okin and Joan Williams discuss this, and it would count as discrimination under MacKinnon’s Dominance conception. I’m pretty sure it would also count as Indirect Discrimination under UK and EU law. And it’s definitely a pattern, so should have been enough to ground a class action suit.

 

13 Responses to “The Wal-Mart Case and Indirect Discrimination”

  1. cornsay Says:

    Ooops — Hadn’t noticed JJ’s post saying more or less the same as mine (because I searched the archives for “Walmart” instead of Wal-Mart”).

  2. Jender Says:

    Perhaps it was clever of me, rather than sloppy, to switch between the two!

  3. H. E. Baber Says:

    I’ve followed the Walmart case for years. And, while I agree that some of the discrimination was “indirect,” lots of women testified that even though they were prepared to work the additional hours, and move to get promoted, they still couldn’t move up. There was also plenty of horizontal sex-segregation in the jobs to which men and women were assigned.

  4. jj Says:

    I did notice, and I hope you don’t mind if I mention my reaction. In the end, I found what’s happened genuinely helpful.

    What is sparked off in me is the recurring sense that I am invisible and without effect. I expect that’s a fairly common feeling among women in philosophy, and I’d think perhaps especially among my generation. That’s a horrible problem, not least because it leaves one out of touch with how one is actually affecting people. So I was reflecting that I must find ways to counteract this recurring sense of feeling invisible. I don’t quite know how to do that, but hearing that this was a matter of spelling mistakes is something I’ll try to keep in mind.

    I wonder if I should do a post about feeling invisible. It might be an entry into a fairly tricky topic that I’ve been thinking about; namely, how being a token can leave one with genuine character problems.

  5. [...] See also: The Wal-Mart Case and Indirect Discrimination | Feminist [...]

  6. liucong Says:

    Thanks for sharing with us.Tank you very much.

  7. reluctant defender of walmart Says:

    I’m a bit hesitant about the sort of indirect discrimination at issue here. Let me assume two things: (1) that the employment practices (requiring managers to relocate and work very long hours) are perceived by Walmart as crucial to its successful business strategy; and that (2) that ONLY this indirect discrimination is at issue (i.e. that we’re setting aside suspicion of more traditional, direct discrimination against women).

    Given these assumptions, I wonder what the proposed remedy should be. After all, supposing that these employment practices are indeed necessary to Walmart’s success (or at least are perceived as necessary by the company), then the only possible remedy seems to be for the company to hinder its central goals – which doesn’t seem like a reasonable demand, since the goals themselves are not evil.

    Or, more worrisome, someone could turn the whole argument around in a rather nastily anti-feminist way. Discrimination is regarded as permissible when the traits discriminated against are those that render the individual incapable of adequately performing the job. For instance, it is permissible to discriminate against visually-impaired individuals when hiring air traffic controllers. If we now suggest that women are (statistically speaking) less capable than men of fulfilling the necessary requirements of a management job at Walmart (such as being able to relocate and work very long hours) then we’ve laid the groundwork for an argument that this is justified discrimination.

    None of this diminishes the observation that this is a bad situation. It’s bad that women employees of Walmart are less able to advance than men employees, whatever the explanation. But this can be a bad situation without it necessarily being Walmart’s fault – or even Walmart’s responsibility to remedy. After all, the problem would go away if broader social forces, entirely outside Walmart’s control, were altered. For instance, if child- and elder-care were understood as ungendered responsibilities, shared equally between men and women, then the impact of Walmart’s management requirements would fall far more evenly.

    So I’m not convinced that this sort of indirect discrimination can or should ground a lawsuit. Of course, if it could be shown that these employment practices are not at all necessary for Walmart’s strategy – especially if it turns out that they were actually put in place solely to discourage women – then I’d have a different response.

    Incidentally, it’s worth pointing out that the employment requirements taken to be responsible for indirect discrimination here (relocation, very long hours) are also present in academia. Very few academics get to attend graduate school, get their first job, and take all subsequent jobs all in the same city. Many academics, especially the untenured, often work far more than 50 hours per week. Clearly this has an unequal impact on men and women in academia, and clearly that is a bad thing. But the best solutions – whatever those are – won’t involve mandating that academics be given jobs in the same city where they did their graduate work, or imposing hourly work restrictions. Similarly, I think, for Walmart.

  8. returning commenter Says:

    Sorry: I’m not sure why I should find the analogy between academia and Walmart persuasive; and I’m also not sure why we should take Walmart at its own word when it says these indirectly discriminating practices are necessary to its business success. (Furthermore, there’s a difference between saying a practice is necessary for a business’ success and saying that its necessary for the business to carry on at all. I’m not sure why the former, as opposed to the latter should be a grounds for allowing practices that would otherwise be disallowed)

  9. reluctant defender of walmart Says:

    Hi returning commenter,

    There seem to be three issues here:

    (1) is Walmart sincere in saying that it believes these practices are necessary for its business strategy?

    I don’t see any reason to assume otherwise. As a default assumption, we can suppose that profit-making enterprises, especially successful ones, generally aim at business practices that are believed to be necessary for their profit-making strategy. Since we lack any evidence otherwise, we should assume that is indeed what Walmart believes about these practices. (Or, rather, maybe there is evidence of other motives for these practices. H.E. Baber suggests as much. In that case, my entire argument is moot. As I said, I’m proceeding on the assumption, for the sake of argument, that such evidence is lacking – that the question before us is about indirect, rather than direct, discrimination.)

    (2) Is there a practical distinction between business practices necessary for a particular successful strategy versus practices necessary for the company’s existence? Which of these is this particular practice in the case of Walmart?

    This depends on the metaphysics of companies. What are the essential properties of a particular company? Very plausibly, Walmart -as it presently exists – cannot be at all without practices such as these. Its low-cost, high-volume, massively-distributed strategy is the chief cause of its market leadership, and that leadership is partly constitutive of the identity of Walmart. (Walmart would not be such an important touchstone for these debates if it were not so successful. For instance, it would not be the largest private employer in the country.) That strategy probably does depend on mangers who work long hours and are willing to relocate. Could there exist a company in roughly the same industry as Walmart, without Walmart’s business practices? Sure – such companies do exist. But, quite plausibly, Walmart itself cannot be one of them. (Or, more complexly, were Walmart to change such it no longer employed these practices, it would likely no longer be anywhere near as successful, and so would cease to be such a focus of attention.)

    (3) Supposing that these practices are indeed essential properties, should companies with those properties be permitted to exist?

    That’s a big question. The answer depends on very broad views about political economy and the moral status of capitalism. That takes us pretty far afield. At minimum, it doesn’t seem clear to me that the mere fact that a particular business practice has differential impacts on different demographic group necessarily entails that this practice is wrong, and so that an organization essentially constituted around that practice should be prohibited. (If that were the case, then we couldn’t have air traffic controllers.) Especially given that – as I said above – it seems like the negative effects of Walmart’s practices are contingent on broader corrosive social forces (e.g. the gendered division of child- and elder-care), the burden seems to be on us to explain why we should take the rather drastic step of prohibiting a way of doing business that is not intrinsically evil.

    It’s interesting to note that you don’t find the comparison to academia persuasive. Since you didn’t explain why, there’s not much I can say in response.

  10. Jender Says:

    Reluctant, I think Returning may have meant something different: not that we should doubt the sincerity of Wal-Mart’s claim that these practices are necessary but rather that we should doubt its truth (however sincerely believed). Wal-Mart may well think the practise is necessary, but it may not be. And, to defend against a charge of indirect discrimination, they’d need it to actually be necessary.

  11. Jender Says:

    JJ- such an interesting and difficult problem.

  12. jj Says:

    Jender, I assume it is a pretty common problem, hence, I hope the comment didn’t seem particularly confessional. One of the big problems with discrimination is that it does have distorting effects on one’s personality as, e.g., one explodes in unnecessary anger, or withdraws from a competition earlier than one needed to, etc, etc..

  13. [...] The Wal-Mart Case and Indirect Discrimination (feministphilosophers.wordpress.com) [...]


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