The Wal-Mart Case and Indirect Discrimination

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.

Walmart Case: Women don’t have enough in common

A quick update on the Walmart case that ednainthesea discussed here. The US supreme court has decided that one and a half million women cannot bring a class-action suit against Walmart, in which they were to argue that the corporation’s record on the promotion and pay of women belies institutional sex discrimination. The justices agreed unanimously that the suit failed to meet a particular technical requirement. More interestingly, a 5-4 majority ruled that the women do not have enough in common to bring a class action suit; according to Justice Scalia, the necessary common element is “entirely absent”.

You can read the full opinion here (direct link to .pdf). Part II of the court’s opinion (pp. 8-20) explains the reasoning behind the no-common-element decision. The appended dissenting opinion, written by Justice Ginsburg, takes issue with this part of the opinion (post, pp. 1-11).

Whatever the niceties of the legal arguments, it seems clear that the decision has greatly diminished the chances that large class-action suits could be used to address systemic discrimination.

Edition of Granta dedicated to feminism

Rather late on this one, since I only just got round to opening my copy, but the current (Spring 2011) edition of Granta has feminism (or as they have it, “The F Word”) as its theme. In addition to the articles in the print edition, there’s lots of online-only content too, which you can access free. I’ve only had time to read a couple of pieces properly, and skim a couple more, but there seems to be a wealth of interesting stuff there.