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.