Wal-mart jus­tice

The Washington Times Weekly - - Editorials -

The Supreme Court on June 20 handed down its de­ci­sion in Wal-Mart v. Dukes, a nearly decade-old class-ac­tion law­suit in­volv­ing more than 1.5 mil­lion women who worked at the re­tail gi­ant since 1998. The plain­tiffs ar­gued that the com­pany showed fa­voritism to men in de­ci­sions re­gard­ing pay and pro­mo­tions, in vi­o­la­tion of Ti­tle VII of the Civil Rights Act. Two lower courts gave the suit a green light, but the Supreme Court stopped it in its tracks.

The key and most di­vi­sive ques­tion was whether it could be proved that Wal­Mart sys­tem­at­i­cally and in­ten­tion­ally vi­o­lated the rights of women it em­ployed. As proof, the plain­tiffs of­fered a study show­ing sta­tis­ti­cally sig­nif­i­cant dif­fer­ences in pay be­tween men and women at Wal-Mart com­pared with the re­gions in which they worked and also some anec­dotes of man­agers al­legedly mak­ing sex- ist com­ments. The Supreme Court ze­roed in on what should be the crit­i­cal ques­tion in such a far-rang­ing case, namely: Where is the proof that Wal­Mart, as an in­sti­tu­tion, broke the law?

Dis­crim­i­na­tion cases are rooted in hard his­tory, the times when — by some — big­otry and sex­ism were con­sid­ered nor­mal and nat­u­ral.

Laws like the 1964 Civil Rights Act sought to ad­dress ex­plicit, not im­plied, so­cial ills. If Wal-Mart man­agers fol­lowed writ­ten or even un­writ­ten poli­cies that women were to be paid or pro­moted dif­fer­ently from men, that prac­tice would be il­le­gal. But there are no such poli­cies. In fact, Wal-Mart has ex­plicit hir­ing, train­ing and pro­mo­tion pro­to­cols to the con­trary. Proof that Wal-Mart “op­er­ated un­der a gen­eral pol­icy of dis­crim­i­na­tion” was “en­tirely ab­sent,” ac­cord­ing to the court.

A “so­cial frame­work” anal­y­sis of Wal­Mart by so­ci­ol­o­gist Wil­liam Bielby came un­der with­er­ing crit­i­cism when its au­thor con­ceded he “could not cal­cu­late whether 0.5 per­cent or 95 per­cent of the em­ploy­ment de­ci­sions at Wal-Mart might be de­ter­mined by stereo­typed think­ing.”

As Jus­tice An­tonin Scalia tren­chantly noted, “if Bielby ad­mit­tedly has no an­swer to that ques­tion, we can safely dis­re­gard what he has to say.”

In her par­tial dis­sent, Jus­tice Ruth Bader Gins­burg dis­counted the re­quire­ment for ex­plicit proof of in­ten­tional dis­crim­i­na­tion. “Man­agers, like all hu­mankind, may be prey to bi­ases of which they are un­aware,” she wrote. “The risk of dis­crim­i­na­tion is height­ened when those man­agers are pre­dom­i­nantly of one sex, and are steeped in a cor­po­rate cul­ture that per­pet­u­ates gen­der stereo­types.” This type of col­lec­tive, un­con- scious guilt re­quires no firm proof. It discards the fun­da­men­tal no­tion of jus­tice as the con­se­quence of prov­able in­di­vid­ual be­hav­ior and lumps all men into the “sex­ist” cat­e­gory sim­ply by virtue of their be­ing men. In this loose frame­work, whether male Wal-Mart man­agers were aware of their “un­con­scious” sex bias is ir­rel­e­vant; they are guilty from birth. By that logic, the same should ap­ply to Wal-Mart’s fe­male man­agers, and for that mat­ter one could as eas­ily — and un­fairly — say the fact that Jus­tice Gins­burg is a woman leaves her open to “sub­con­scious bi­ases” in de­cid­ing a case of this na­ture. Vic­ti­mol­ogy is a two-way street.

The high court has taken a stand against as­sign­ing whole­sale cul­pa­bil­ity to peo­ple of a given race or sex sim­ply by virtue of their mem­ber­ship in it. That’s the very evil civil rights laws seek to rec­tify.

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