Monday, June 20, 2011

Welcome to Wal-Mart: The Discriminating Employer!

The aisles to the left of you have low-wage dead-end jobs for women, the aisles to the right of you have better-paid careers and management opportunities for men only!

No, this is not discriminatory at all because the headquarters of Wal-Mart have hired me with full freedom to run this store and they don't have a general policy of discrimination. And no, that the same seems to happen in many Wal-Mart stores has nothing to do with anything but people like me being hired to run those stores! That's how we generally think, you know. It's not the fault of Wal-Mart.

This appears to be the thinking of Justice Scalia in the Wal-Mart sex discrimination case:
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.
I expected a five Justice decision that would make class actions lawsuits more difficult. After all, that's what the Republican Justices are there for: to take care of the firms and the people with money and to make their lives easier. That class action suits might be one of the few ways that poor people could seek justice in discrimination cases does not matter to them. That not having to face class action lawsuits makes life more comfortable for firms does matter to them.

What I did not expect was the extremely open bias of the five Republican men, making decisions about the lives of poor women, essentially:
In a ruling that raises new barriers to class action lawsuits against large nationwide companies, the U.S. Supreme Court derailed a sexual discrimination suit against Wal-Mart on Monday by more than 1 million female employees, saying the female plaintiffs failed to show that any of the retail giant's policies had denied them equal pay and promotions.
The justices unanimously overruled federal courts in San Francisco that had allowed all women who worked for Wal-Mart since December 1998 to join in a single nationwide suit seeking back pay. But on the most critical issues in the case, a five-member majority led by Justice Antonin Scalia set tough new standards for future suits:
-- A company that allows local managers to decide pay and promotions can't be held responsible for sex-based corporate disparities unless they can be tied to some company-wide practice that amounts to "a general policy of discrimination."
-- A company whose policies denied women equal pay would be entitled to individual hearings on the amount due to each worker. An appeals court would have allowed hearings for a sample group of employees to determine back pay for the entire class, an approach that would save time and money but, Scalia said, would be unfair to the company.
The court did not address the merits of the plaintiffs' claims that female Wal-Mart employees were paid less than men in every region and were under-represented at every level of management.

It took some time for me to retrieve my jaw from the floor after reading through that. Not the unanimous bit which has to do with a technical (though important) question, but the list of issues the Five Frat Brothers presented us.

Take that first point on the list: If the company headquarters can hire anyone on a local level and give them complete autonomy in hiring, to the point of letting them discriminate, the company is not at fault! That takes out the teeth of most anti-discrimination laws when it comes to big firms.

And the second point means that each person considering suing a large firm will now have much higher legal costs in doing so. Fewer people will sue because they cannot afford it. Good news for the firms.

Finally, the third point is one of those which I don't understand. Suppose that you show Wal-Mart pays women less and promotes them less often than other firms in the same industry, as was shown by at least one study. This says nothing about Wal-Mart as an employer? Pardon me while I pull all my scales off.