Wednesday, June 22, 2011

Discrimination isn't discrimination as long as you say it isn't

The Supreme Court (5 of them anyway) ruled against a class action lawsuit filed on behalf of women employees of Wal-Mart claiming sexual discrimination. Here is Adam Serwer's breakdown of the case:

Justice Antonin Scalia's majority opinion, and Justice Ruth Bader Ginsburg's dissent, reveal a fundamental cleavage in the way the Republican and Democratic appointees on the court view the issue of discrimination. Dismissing the statistical and anecdotal evidence filed by the plaintiffs, Scalia argued that "Wal-Mart’s “policy” of allowing discretion by local supervisors over employment matters" was "just the opposite of a uniformemployment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices." Scalia also pointed out that Wal-Mart has a written policy of non-discrimination.

"The majority makes a huge deal out of the fact that they have a piece of paper that says we have a “nondiscrimination policy,” but they know that this system results in women being overwhelmingly at the bottom, and as you go up the chain, there’s only men at the top," says Brian J. Siebel, Director of Justice Programs at the Alliance for Justice. “The [managers] are in the 'good ol’ boys club." In her dissent, Ginsburg notes that at Wal-Mart, women fill about 70 percent of the hourly retail jobs, but only 33 percent of management employees. The reason, Ginsburg argues, may very well be the subjective "tap on the shoulder process" that allows certain subjective standards, influenced by gender bias, to prevail when it comes to selecting employees deemed "management material."

Another interpretation of what happened:

Scalia concludes that (even in advance of a lawsuit) the women could not show that Wal-Mart "operated under a general policy of discrimination." That's partly because "Wal-Mart's announced policy forbid sex discrimination" and partly because he rejects the plaintiffs' claim that Wal-Mart's "policy" of allowing discretion by local supervisors over employment matters constitutes a policy at all. As Scalia sees it, in giving local managers so much leeway in making personnel decisions, Wal-Mart actually established "a policy against having uniform employment practices." It's not Wal-Mart discriminating against women. It's just all these men doing it, and God knows men don't have unconscious biases and prejudices against women.

That's the kind of legal reasoning you are likely to get from old, rich white guys. The effects of the "policy" were discrimination against women. That is simply what the numbers say. I just don't see how that could be a statistical anomaly.

This kind of stuff is why I'm glad I didn't go to law school. It would have driven me nuts. Not to mention that like myself, new law school grads aren't exactly turning down many high paying jobs. I hope the ones who are turn out better opinions than this one.

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