The US Supreme Court seems to be divided over Wal-Mart Stores v. Dukes, No. 10-277, which, at this stage, is a case about whether or not the women employed by Wal-Mart can mount a class-action sex discrimination suit against Wal-Mart. You can read about it here, here, and here.
There are a number of reasons why readers might find this case interesting. First, the court is currently trying to decide if the women employed by Wal-Mart have enough in common to make up a class. This is something that feminist metaphysicians have difficulty agreeing on, and the arguments before the court seem to reflect the relevant complexities.
Second, these arguments might just be a vehicle for new discrimination legislation that takes the latest evidence from the sociology and psychology of discrimination into account. One of the main witnesses for the plaintiff is University of Illinois at Chicago sociologist William Bielby, who works on something called social framework analysis. Bielby says he gathers “scientific evidence about gender bias, stereotypes and the structure and dynamics of gender inequality in organizations.” Readers interested in our unfolding understanding of discrimination, including things like implicit bias and stereotype threat, should definitely watch this case.
Finally, I find it interesting that a case like this has made it to the highest courts. There really does seem to be a genuine debate going on between justices, and this pleases me. What are they saying?
Justice Kennedy and Justice Scalia think the plaintiff’s argument (that Wal-Mart allows its store managers too much discretion in hiring and promotion decisions, thus leaving the door open for gender discrimination) is internally inconsistent. They think that either Wal-Mart corporate policy is discriminatory or that individuals within the corporate structure are discriminatory, but that the plaintiff cannot “whipsaw” and have it both ways. (The plaintiff’s lawyer, Mr. Joseph Sellers, is trying to argue that hiring and promoting decisions are not made “in a vacuum”, and that gender stereotypes affect managerial decisions. This is interesting because neither the corporate structure nor the individual managers are responsible for the stereotypes, but the company is responsible for treating its employees fairly. Hence the new kind of discrimination suit…)
Justices Breyer and Ginsburg are concerned with the practical consequences of the suit. Breyer asks if central management ought to have noted the company’s gender pay gap statistics and stepped in to remove some of managers’ discretion. This, I’m sure you’ll agree, is a very interesting question. Especially considering Justice Ginsburg’s thought that companies are responsible for the fair treatment of their employees, and Justice Kagan’s thought that excessive managerial discretion may violate civil rights law.
Most of the Justices seem interested/concerned about the possible effects that this suit might have on American business as a whole. After all, the women employees of Wal-Mart are suing for backpay owed after years of being passed over for promotions and being paid less than their male colleagues for comparable jobs. If the court certifies this case as a class-action, will all businesses be vulnerable to similar suits?
“So, you have the company that is absolutely typical of the entire American work force,” Justice Alito said. “Then you would say every single company is in violation of Title VII of the Civil Rights Act?”
“That could very well be the case,” Mr. Sellers, lawyer for the plaintiff, said.
I couldn’t have put it better myself.
(arguments are paraphrased and quotations sourced from New York Times links above)