No Class: The Supreme Court’s Wal-Mart Ruling

By Janet Chung

Last week, the U.S. Supreme Court issued its long-anticipated decision in Wal-Mart v. Dukes. The main issue: Could a class of 1.5 million women who have worked at Wal-Mart since 1998 proceed with common claims that the company’s pay and promotion practices discriminate against women? The Supreme Court answered, “No.”

The decision doesn’t just directly impact those 1.5 million women. It’s a huge step backward in the fight against systemic workplace discrimination.

Plaintiffs argued that Wal-Mart’s nearly completely subjective pay and promotion practices, with unfettered supervisor discretion, established a common basis for all the women’s discrimination claims. But the Supreme Court majority rejected that idea.

Wal-Mart’s pay practices include virtually no standards or criteria for setting wages – in other words, nothing to counter unconscious (or even conscious) bias of supervisors, most of whom are men. The same is true for promotions; Wal-Mart uses a “tap on the shoulder” process, doesn’t regularly post vacancies, and managers choose employees for promotion based on their own subjective impressions.

Is it any wonder that the result of Wal-Mart’s system of entirely subjective decisionmaking is that women at Wal-Mart stores in every region are paid less than men? Or that women fill 70% of hourly jobs at Wal-Mart, but only 33% of management positions?

Yet the majority held that this almost completely subjective system of determining pay and promotions, and which led to clear gender-based differentials, did not establish a companywide discriminatory policy. However, research supports the opposite conclusion.

Without objective decisionmaking criteria, it is very easy for discrimination to occur. The reality is that all people, including managers, have biases of which they may not even be aware. As Justice Ruth Bader Ginsburg noted, writing in a concurrence, “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.”

[An aside: All but one male Justice joined Antonin Scalia’s majority opinion, while all three women on the Court did not. Instead, Justices Kagan, Sotomayor, and Justice Breyer joined Justice Ginsburg’s concurring opinion, which held on the main issue that the plaintiff class could have established a common basis for their claims, while the all-male majority just couldn’t see how subjective decisionmaking could lead to discrimination. Hmm… speaking of unconscious bias….]

Remarkably, Justice Scalia also pointed to the fact that Wal-Mart had a formal policy prohibiting discrimination to show that really, the company didn’t have any practices or policies that resulted in discrimination. But as Dahlia Lithwick at Slate points out, every company has a similar anti-discrimination policy … on paper. It’s not as if a company is going to announce as a policy that it will discriminate (these days, anyway).

The decision is a setback, but ultimately, all is not lost for the Wal-Mart women; they can still pursue individual claims, or perhaps try to pursue their claims in smaller classes. However, there continue to be enormous barriers to individuals pursuing valid claims, and the Supreme Court has made it even harder for employees to join together and sue as a class to challenge systemic discrimination.

And, of course, the Wal-Mart situation is a good reminder why Legal Voice and organizations like it exist and need to continue to exist: to fight against ingrained discrimination and to bring about systemic change.

Naughty By Nature: Does Power Make Women Lustful Too?

By Laurie Carlsson

As the news hit that Senator Anthony Weiner resigned today, the blogosphere flooded with theories of all sorts. Why do men cheat? Why do powerful men cheat more often than other men? What on earth makes men think that they won’t be caught, when there seems to be a new tale of lasciviousness every month.

The more interesting question to me is this: Why is it always the men who get themselves embroiled in these situations? Why do we so seldom hear of a woman forced to resign from office because of an affair or other inappropriate behavior. Clearly there are far more men in office than women - we’re still at a mere 16% of U.S. Congress, an average of 23% of state legislative seats, and just 8 of 50 governorships. But at this rate, every 1 in 6 political sexual scandals should involve a female public official, right? Yet I can’t think of a substantial one that has. Sure, people throw allegations around, but we certainly haven’t seen the kind of career-ending sexual missteps that seem to take down male politicians on a regular basis. Why is this?

We could go with the theory that women cheat as often, but don’t get caught. Studies would actually support that theory, as you can see in Helen Fisher’s study “Infidelity: When, Where, Why,” which tells us that women under 40 are unfaithful at the same rate as men. Further evidence toward this theory comes from studies of the link between infidelity and power. Tilburg University Professor Joris Lammers recently conducted a survey of professionals with differing amounts of power. He found that the more power an individual had, the more likely they were to confess to acts of infidelity. He found no gender difference in his conclusions. Another study, this time conducted in the U.S. by Florida State University Professor Jon Maner, also shows that women are as likely as men to exhibit amorous behavior when given a sense of power. In Maner’s study, college students were paired with strangers of the opposite sex. When one of the subjects was given a fleeting sense of power, they flirted with the other subject. When no sense of power was instilled, the flirting went away. And, you guessed it, women flirted every bit as much as the men.

Is it that women are used to having every detail of their life scrutinized by the general public and are therefore aware of their vulnerability? This is what once press secretary to Bill Clinton, Dee Dee Myers posits. She writes in her book “Why Women Should Rule the World” about the invincibility that male politicians feel. And it’s true. Can you imagine Hillary Clinton being so bold as to send inappropriate texts to an intern? She can barely change her hairstyle without causing a ruckus.

My favorite theory comes from Debbie Walsh, director of the Center for American Women and Politics at Rutgers University. “The shorthand of it is that women run for office to do something, and men run for office to be somebody.” Basically, women are too busy doing actual work to send lewd photos of themselves, or hook up with prostitutes at their local airport bathroom. The stats back this theory up, with women introducing more bills, and participating at a higher rate in debates. Over a two year period, women averaged 14.9 opening session speeches, versus 6.5 for men, says a study by Kathryn Pearson, a Congress expert at the University of Minnesota.

One last thing I will say about the buzzing topic of infidelity: Dominique Strauss-Kahn has gotten tossed into the arena of this discussion, much to the disservice of sexual assault survivors everywhere. Rape is not the same thing as infidelity. As women’s studies professor Juliet Williams opines, “Personal transgressions should not be casually conflated with attempted rape, as if one form of male entitlement is equal to the other.”

Photo Credit: Andrew Burton/Getty Images