31/03 Is Wal-Mart on the hook for America's sexism?

Workplace discrimination

Is Wal-Mart on the hook for America's sexism?

Mar 31st 2011, 15:01 by W.W. | IOWA CITY

ACCORDING to Supreme Court-watchers, Wal-Mart had a good day on Tuesday. The issue before the Supremes was whether 1.6m past and present female Wal-Mart employees have enough in common to constitute a class, on whose behalf the plaintiff seeks to sue for workplace discrimination. Here's how the New York Times' Adam Liptak characterises the dispute:

The plaintiffs’ theory is that a centralized companywide policy gave local managers too much discretion in pay and promotion decisions, leaving Wal-Mart vulnerable to gender stereotypes. The plaintiffs have presented sworn statements and statistics to support their claim.

Wal-Mart calls that evidence unrepresentative and unreliable. The company says its policies expressly bar discrimination and promote diversity. In any event, the company says, the plaintiffs—who worked in 3,400 stores in 170 job classifications—do not have enough in common to warrant class-action treatment.

All three female justices appeared sympathetic to the plaintiffs' arguments. Greg Stohr of Bloomberg reports:

Ginsburg spoke about how corporate decision-makers tend to hire people like themselves, while Sotomayor endorsed the use of statistical analysis in discrimination cases. Kagan balked when Boutrous said the workers’ case was based on an “incoherent theory.”

“I guess I’m just a little bit confused as to why excessive subjectivity is not a policy that can be alleged” as the basis of a job-discrimination suit, said Kagan, the newest justice.

In contrast, Justices Scalia and Kennedy were sceptical that the plantiffs had in fact identified a single company-wide policy that could justify treating over a million women, working at thousands of different stores under thousands of different managers, as a single class whose members were all subject to discrimination.

It seems to me quite likely that millions of women have been discriminated against in terms of pay and promotion at Wal-Mart stores. But this is more likely to reflect pervasive cultural bias rather than anything specific to Wal-Mart's hiring and promotions policies, which seem completely standard. In a sexist culture, if managers are typical people and have any discretion at all, a pattern of discrimination will arise, even ifmanagers sincerely attempt to exercise their discretion in strict compliance with their firm's state-mandated anti-discrimination policy. This would seem to be a straightforward implication of much of the literature on implicit bias.

The deep issue, then, is whether a firm can be held legally liable for a pattern that emerges not from their explicit anti-discrimination policy, or even from the intentions of their managers, but from the discretion of managers with unconscious biases typical in the general population. It seems to me exceedingly difficult to show that a pattern of discrimination is the result of too much discretion, at least if "too much" is supposed to be somewhere between "some" and "none". Who has a principled definition of "too much"?

Now, having been an employee of Wal-Mart and other large low-wage employers, and thus well-acquainted with the relevant class of managers, I'm open to the argument that managerial discretion is often good for no one. But the idea that Title VII of the Civil Rights Act prohibits it altogether, or allows just a little bit, but not much, is a lot to swallow.

(Photo credit: AFP)