Discretion

Discretion

The Supreme Court has just ruled that 1.5 million women cannot proceed in the form of a class-action lawsuit against WalMart for employment discrimination. The ruling did not address the merits of whether Wal-Mart has discriminated against women, only whether the proposed class met the standards for certification, which require (among other things) that there be questions of law or fact common to the class, i.e., "commonality." (The justices ruled unanimously on a subsidiary question of class certification, but split 5-4 on the threshold issue of commonality.) The Supreme Court found that the Wal-Mart plaintiffs had failed to identify an alleged practice of discrimination that applied broadly to the entire class of all women hired since 1998.

The alleged harm in this case does not arise from an identifable company-wide policy. It arises from a delegation of subjective salary and promotion decisions to each local manager. The plaintiffs's expert sociologist argued that, notwithstanding the employer's formal corporate-headquarters policy against gender discrimination, Wal-Mart's "corporate culture" made it somehow "vulnerable" to gender bias. From this, the plaintiffs concluded that Wal-Mart had a duty to take effective action to ensure that women did not suffer statistically in terms of access to higher pay and promotions. The sociologist, however, could not go much further than to point to a vulnerability to bias; in particular, he was unwilling to hazard a guess whether there was a 0.5% or a 95% chance of "stereotypical thinking" producing an incorrect result in any particular decision about a raise or promotion. The Court stated:

[Plaintiffs] wish to sue for millions of employment decisions at once. Without some glue holding together the alleged reasons for those decisions, it will be impossible to say that examination of all the class members' claims will produce a common answer to the crucial discrimination question.

Accordingly, although the plaintiffs may proceed with their individual discrimination actions, they will not be permitted to proceed on behalf of all women employed at Wal-Mart -- a setback that will markedly reduce their settlement leverage.

This is a "disparate impact" case. The plaintiffs don't propose to prove that each of millions of employment decisions was activated by gender bias, but only that the percentage of women in Wal-Mart's workforce decreases as you proceed up the ladder of pay and responsibility. Women account for 70% of the hourly jobs in the stores, for instance, but only 33% of management employees. The theory is that local managers improperly exercise their discretion over pay and promotions so as to favor men. The illegal "disparate treatment" of women, therefore, takes the form of Wal-Mart’s refusal to limit its managers’ local authority in order to bring it more into line with the gender-neutral aspirations emanating from headquarters, despite headquarters' obvious awareness of the disparate impact.

The basic theory of their case is that a strong and uniform “corporate culture” permits bias against women to infect, perhaps subconsciously, the discretionary decisionmaking of each one of Wal-Mart’s thousands of managers—thereby making every woman at the company the victim of one common discriminatory practice.

Rejecting this argument, the Court held:

"[W]hether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking” is the essential question on which respondents’ theory of commonality depends. If [the expert] admittedly has no answer to that question, we can safely disregard what he has to say. It is worlds away from “significant proof” that Wal-Mart “operated under a general policy of discrimination.”

Because I'm naturally sympathetic with women, but just as strongly skeptical of "disparate impact" cases where the actual mechanism of discrimination is hazy, I like to do a thought experiment with this kind of dispute. I've often puzzled, for instance, over the scarcity of conservatives in academia and journalism. Should conservatives be able to bring a class-action lawsuit against the New York Times or Harvard University for disparate impact? (I realize political orientation is not a legally protected class, but just go with me here.) It would be childs' play to establish that many hiring decisions in academia and the press involve subjective discretion, and that the institutions' leaders are vulnerable to stereotypical thinking about the relative merits of the analytical powers of conservatives and liberals. They may not even be fully aware of their own vulnerability. As the dissent noted in today's decision:

The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects. Managers, like all humankind, may be prey to biases of which they are unaware. . . . The very nature of discretion is that people will exercise it in various ways. A system of delegated discretion, [according to Supreme Court precedent], is a practice actionable under Title VII when it produces discriminatory outcomes.

The dissent's position may be more in line with Supreme Court precedent on these technical class-action standards; I honestly don't know. I do know that this kind of fuzzy thinking about discrimination is dangerous, particularly when it seeks a remedy for unconscious bias. If the Wal-Mart plaintiffs had prevailed, what could the remedy be, other than a removal of discretion from local managers in favor of some kind of blind quota system designed to ensure that equal numbers of women appeared at each rank of corporation position and salary? How else can you extirpate unconsciously bad behavior? When has that kind of rigid affirmative action improved an institution's performance or avoided backlash against the unfairly favored group?

I'd prefer to see employment discrimination cases limited to cases where the bugaboo is something more specific than "discretion." If the presence of discretion in business decisions is really the worst a plaintiff can complain of, then I have no problem with limiting the case to that particular plaintiff, rather than expanding the lawsuit to cover millions of employees working for hundreds or thousands of different bosses, male and female, in numerous different stores, on the theory that some vague over-arching institutional "vulnerability to error" was operating on them all in the same way.