Supreme Court Class-Action Discrimination Case?

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)

Who Counts as a Veteran?

This article by the Associated Press has lots of interesting things to say about the experiences of female veterans returning home to the United States.

FP readers might be particularly interested to read about the experiences of women like Sergeant Rachel McNeill, who was so affected by the way that she was treated by both civilians and Veterans Affairs staff that she started to question whether or not she was really a veteran.

It seems clear to most people that the way we wage wars is changing. How long will it be until we can accept that the faces and experiences of our soldiers are changing, too?

Gender Pay Gap in the NHS

The Guardian newspaper posted this article today about the gender pay gap and “hostile work culture” in the NHS.  The pay gap figures are shocking.  Especially the ones that suggest that women actually earn less (in comparison to men in similar jobs) if they work over a longer period of time.  Ugh.

Knock Yourself Up

This book by Louise Sloan has been making the rounds lately. Check out the interview at Salon here, and the mention by Jessica at Feministing here.

Some responses to this book have really surpised me. Apparently women who become single moms by choice are different from other kinds of single mothers, i.e. more morally degenerate. Who knew?

The most surprising bit of mud that has been slung in this debate so far can be found here. The claim is that no woman should choose single motherhood. Single motherhood is a terrible, tragic thing that sometimes happens to people, but no woman should knowingly choose such a life for herself or her child. And the reason? Beyond the predictable canon of moral degeneracies and social dysfunctions, there is this: That a woman who chooses to become a single mother is treating her child like the latest fashion accessory. Immediately, the image of a small underarm dog in an expensive purse springs to mind. Only certain kinds of woman sport these doggie bags: rich women. So this makes me think. Is the attack an assault on liberal ideology and a changing conception of the family, or is it an assault on single women who can support themselves, their families, and their choices? (Never mind that portraying women like Sloan as wealthy princesses is a huge mistake. Sloan devotes an entire chapter of her book to the question of whether or not this choice is an affordable one.)

Rape and Communication: A rapist in bungler’s clothing

This, the first in what will be a series of posts on rape and communication, is in response to an excerpt from Deborah Cameron’s new book, The Myth of Mars and Venus.

Cameron begins from the premise that many of us believe that misunderstandings between men and women are a widespread and serious problem. She goes on to argue that our concern about inter-gender communication is not justified by evidence. In fact, men and women can communicate perfectly well. And to believe otherwise, Cameron argues, is to perpetuate a dangerous and potentially damaging myth.

Cameron cites the following excerpt from a linguistic research project carried out during a university rape tribunal:

In this extract from the hearing, one of the complainants, MB, has just told the tribunal that the defendant persisted in touching her even after she had repeatedly communicated to him that she did not want to have sex. A tribunal member, GK, then asks her the following question: “And did it occur to you through the persistent behaviour that maybe your signals were not coming across loud and clear, that ‘I’m not getting through what I want and what I don’t want?’ . . . This is the whole thing about getting signals mixed up. We all socialise in one way or the other to read signals and to give signals. In that particular context, were you at all concerned your signals were not being read exactly and did you think, since signals were not being read correctly for you, ‘Should I do something different with my signals?'”

Not only does tribunal member GK couch this scenario in terms of communication (signals), but she also places all of the blame for any miscommunication squarely on the “complainant”. It is her fault that she did not communicate her lack of consent effectively enough to avoid being raped.

Later on in her discussion of this case, Cameron points out that the defendant is never criticized for “not realizing that, by pretending to be asleep, the victim did not want sex”. He says, essentially, that she never said ‘no’.

Disregarding for a moment the tribunal’s blatant sexism and participation in the culture of blaming the victim, this example throws Cameron’s thesis into high relief: Is acquaintance rape just a communication failure gone horribly wrong?

With regard to the above case, I’m with Cameron. There is no way, no how, that this defendant does not know that being asleep or feigning sleep is a signal that a girl doesn’t want sex. However, the “no means yes” case is not dismissed as crazy talk by everyone. More than a few feminist philosphers have published accounts of how such miscommunication comes about and who we should blame for it.

Clearly the way a person communicates her refusal and the way that this refusal is understood are both very important in any analysis of sexual consent. Cameron’s point is that by couching talk of rape in terms of misunderstandings and failed signals, we are dressing the rapist in the trappings of a benign, confused bungler who would be happy to do the right thing if only he understood what his partner wanted. Do feminists really want to leave the door open to this kind of thinking?

IQ, EQ, and the Trouble with Clever Girls

Check out this remarkable article from the Daily Mail by Anna Pasternak.

The premise of the article is not that women cannot balance both job and family. Nope, Pasternak doesn’t stop at that old chestnut. Going above and beyond the call of ordinary sexism, Pasternak claims that intelligent women are intrinsically flawed:

…the intrinsic emotional make-up of women with an over-developed intellect is flawed, and as a result their ability to choose compatible partners or sustain lasting relationships is impeded…

Pasternak cites the following supporting research:

Last year, American writer Michael Noer created outrage when he wrote a piece in Forbes Magazine warning men off marrying career girls. He claimed that recent studies had found that clever, professional women were more likely to get divorced, more likely to cheat and less likely to have children.

Simultaneously, the American Journal Of Marriage And Family cited studies that claim the divorce risk rises when women out-earn their husbands. Evidence, everywhere, seems to point to the fact that thousands of bright women can’t sustain meaningful relationships for a plethora of reasons: they are too controlling, they can’t tolerate less successful men and equally, men resent higher-earning partners.

One of Pasternak’s sources, Sarah Harris, rounds off the avalanche of evidence damning intelligent women as follows:

Let’s face it, none of us clever girls are very happy, are we?

Beware, girls. Academics and leadership may seem tempting, but in the end they will only leave you lonely and undesirable. Instead, “learn to have emotional strength which is about yielding, surrender, openness and a willingness to be vulnerable”. That will help you cover up your intrinsic flaws. Your husbands will never know.

N.B. Jender informs me that Kant also had things to say about a woman destroying ‘merits proper to her sex’ with too much studying. Be warned, ladies.

Her Tone

This morning’s Wrap (the Guardian newspaper’s filter of news as it is covered by various papers) presented a piece about how the papers are covering Jacqui Smith’s management of the string of car bomb attacks in London and Glasgow. Jacqui Smith is our first female home secretary, and has been recieving (mostly) solid performance reviews thus far:

Writing in the Telegraph, Rachel Sylvester says: “Ms Smith’s
> reassuring manner could not be more different to the
> testosterone-charged attitude of her predecessor, John Reid. Instead
> of stoking up public fears, she has sounded rational … She did not
> talk about a ‘war on terror’, send tanks to Heathrow or promise a
> 10-point plan.”
>
> In similar vein, Quentin Letts in the Daily Mail says: “She did no
> tweaking of the neck or glowering or grinding of teeth, as Mr Reid
> almost undoubtedly would have done.” He even tips her as the next
> Labour leader.
>
> But Simon Hoggart in the Guardian isn’t quite so kind. He says: “Her
> tone was of a Women’s Institute secretary explaining the arrangements
> for a the fete in the event of rain.”
>
> * Simon Hoggart (
> http://politics.guardian.co.uk/columnist/story/0,,2117183,00.html )

I found it difficult to believe that the Guardian would print something as blatantly sexist as Simon Hoggart’s comments, so I linked to his article (see above) to see if he was quoted out of context. It turns out that he was. Mr. Hoggart believes that his characterization of Ms. Smith’s competence is not “a cavil: it is a sensible way of proceeding. We have a problem. Let us try to solve it without leaping around like panicky rabbits in a sack.” So he intended the “Women’s Institute” comments as a compliment. What Mr. Hoggart does not explain is why a sensible, capable, rational woman who has just taken up a prominent leadership position in our government should be characterized as a “Women’s Institute secretary” and how the handling of domestic and international terrorism should be analogous to “a fete in the event of rain”.

This is not by way of denigrating the Women’s Institute… The analogy between the organization of a fete and the organization of high levels of gov’t made me uncomfortable. What would Mr. Hoggart have said if the home secretary were a man? Ought we to see strength in the transfer of traditionally female abilities to a traditionally male role? (Then again, I don’t know anything about Ms. Smith’s extra-governmental abilities, gendered or not.)