March 28 2011
Society on Trial in Wal-Mart Case
Carrie L. Lukas
The Supreme Court has agreed to take up the question of whether 1.5 million female employees can join together to sue Walmart for discrimination. The Court won't be considering the merits of the claim (if Walmart systematically under-pays and under-promotes female workers), but whether the million female workers constitute a class that can sue.
As Romina Boccia explains, the suit rests largely on 120 statements of anecdotal evidence, statistics on gender gaps in pay and promotion, and a statement by a Chicago sociologist on implicit bias.
The anecdotal evidence seems particularly weak in a case like this: it seems a stretch to extrapolate the specifics of any one instance of discrimination to hundreds of thousands of other women across the country, and I'm sure that Walmart could produce equal numbers of women to describe the fair treatment that they have received.
Statistics about earnings are also notoriously misleading. It's very difficult to compare apples-to-apples with employment histories, and statistics concerning a company with more than a million employees is likely to suffer from some of the same short comings as the national "wage gap" numbers. Yes, working women earn about three-quarters of what men earn, but since that statistic ignores the different career and specialty choices, work histories, breaks from employment, education, and even number of hours worked, it tells you little about the role discrimination plays in determining earnings.
Similarly, Walmart managers have "implicit biases," but what should count is the actions that they take. Furthermore, moving forward on a case based on the existence of societal biases seems an invitation to sue almost anyone for any unexplained slight. As another big box retailer, Costco, explains:
Certifying a class in the Walmart case . . . would mean that "employers with decentralized business models will have few avenues available to escape a . . . certification order, other than resorting to surreptitious quotas."
And it may turn out that advancing the cause of quotas, as much as any payout for this specific class, is what this lawsuit is really about.