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.
— Carrie L. Lukas is executive director of the Independent Women’s Forum.
MyKu:
Katie Couric says
Walmart jobs aren't worth having
in the first place, right?
------------
So what's the big deal? If we're down to Roscoe's Share (10% of 10% of 10%...*cueg* *cueg* *cueg*), why does the SCOTUS need to be involved?
If the net result knocks a leg out from under the Stool (and I use that term loosely) of Quotas, though, this could be fun. I wouldn't count on that, though.
Reply to this commentLinkReport Abuse> 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.
Gee, you think?
Reply to this commentLinkReport AbuseWhile I have no doubt that the lawyers who represent the plaintiffs have a left-leaning ideological bent, I don't think advancing quotas is the aim here; it's just the money. In the employment arena, most lawyers either represent employees or employers exclusively. Many, many class action suits are filed in the same federal district court in Northern California. Certification of the class effectively makes the case untriable from either a procedural/substantive point of view or from a costs/damages point of view. After negotiating a large settlement -- much of which is payment of attorney's fees -- the law firms that file these cases simply move on to their next target. They've got a whopper on the line this time, however, which means that there's a huge potential recovery but also a big fight on their hands in finally landing the fish.
Reply to this commentLinkReport AbuseIt's very simple, Walmart has been a target of the left and the unions for ages. We can guess which SCOTUS justices will vote for the concept, but what about Kennedy?
Reply to this commentLinkReport AbuseInteresting about Kennedy. Actually, he's probably the Justice who is most likely to land on the employer's side, although Alito is giving him a run for his money. Scalia is not nearly as predictable as one might think in the employment context, and Thomas will surprise every once is a while. I would say that both of them are less predictable than Roberts.
I think this case also presents some interesting class action issues. I don't think that there's any doubt where Ginsburg will land (pro-employee/pro-class action, and Sotomayor probably will end up in the same camp, but after that it could be anybody's guess.
Reply to this commentLinkReport AbuseHere's an idea: If you don't like how Walmart promotes its employees, don't work at Walmart.
Reply to this commentLinkReport Abuse