March 30, 2011

The policy that is no policy... the problem of the sex discrimination action again Wal-Mart.

Lyle Denniston homes in on the plaintiffs' problem, as it emerged at oral argument in the Supreme Court yesterday:
[Justice Anthony] Kennedy said, “It’s hard for me to see…Your complaint faces in two directions. Number one, you said this is a culture where Arkansas knows, the headquarters knows, everything that’s going on. Then in the next breath, you say, well, now these supervisors have too much discretion. It seems to me there’s an inconsistency there, and I’m just not sure what the unlawful policy is.”

[The female employees’ lawyer, Joseph M.] Sellers chose in reply to dwell on the breadth of the store managers’ discretion, saying “There’s no guidance whatsoever about how to make those decisions.” The discretion, he added, is then used within “a very strong corporate culture” that leads managers to be “informed by the values the company provides.” The response itself seemed contradictory: if there was “no guidance whatsoever,” how were the managers led to apply company “values”?
I think plaintiffs are trying to say that if headquarters can see a pattern of women doing poorly under the decentralized discretion system, then keeping that system in place is a discriminatory policy. That absence of centralized control is the common issue that makes it an appropriate class action (rather than lot of individual cases that ought to be brought separately if at all).

So... the thing that makes a million individuals the same is that they... are different. They should have been made the same.... or more alike... by a sex-discrimination-conscious policy. I think it's possible to get your head around that idea, but nearly impossible to picture workable legal doctrine governing the real-world affairs of human beings... including the judges who would apply it.

50 comments:

The Drill SGT said...

If they argue that the problem was too much discretion at the store level, isn't the remedy class actions at the store level, where all the plaintiffs have something in common?

PS: my experience with decentralized, yet performance oriented firms like Wal-mart doesn't seem like the women have great casesw. Those store managers are very incentivized to get the most out of their staff and to select the best department heads etc. I'm willing to bet that differences in pay will be the result that you normally find in these gender pay cases. The men (generally) were willing to take on more hours on crappy shifts in order to get ahead. The women (generally) passed on those assignments to work shifts and jobs that fit in with their families, etc. That resulted in more men getting selected to be mgt trainees, etc.

TosaGuy said...

I wonder how far this case would have gotten if it wasn't Walmart.

Brent said...

Why is that this is so clear to so many - that the women need to take their cases individually - and yet so murky to those who desire the big payday they can reap from a big corporation?

Seems that greed is the problem here - and we're not talking about WalMart.

The Drill SGT said...

The response itself seemed contradictory: if there was “no guidance whatsoever,” how were the managers led to apply company “values”?

In other words, HQ's didn't impose gender or racial quotas on promotions like it should :)

what headquarters did, was stress the corporate values and that led managers to select subordinates that held those values

Conservative Libertine said...

Hey! Sometimes she DOES write about the law! :-)

Professor, please remind us of the the last good and just class action suite.

As the WSJ constantly points out, it seems that all class actions are merely vehicles for corporate extortion.

bagoh20 said...

This is about discrimination like the Madison Capitol protests are about free speech: A sugary covering to hide the raw clawing to get other peoples' money by people who doubt their ability to compete on their own merits.

pst314 said...

"I think it's possible to get your head around that idea, but nearly impossible to picture workable legal doctrine governing the real-world affairs of human beings... including the judges who would apply it."

Is Democratic Centralism the name of what they seek? ;-)

Lem said...

There is something inherently disappointing about success

Topsy-Turvy (1999)

shoutingthomas said...

The type of people who work at Wal-Mart are Mom and Pop middle America.

The notion that Pop should be the head of the family, and probably make more money and have a better position, is pretty widespared in middle America.

These are the people Wal-Mart employs.

I suspect a severe case of attempted social engineering by liberals who don't like the culture of Mom and Pop middle America.

PatCA said...

Does this discrimination against women really actually exist anywhere in working America?? I haven't seen it. If anything, I see a bias in favor of women.

The Drill SGT said...

ShoutingThomas said...The notion that Pop should be the head of the family, and probably make more money and have a better position, is pretty widespared in middle America.


I'll expand on that in 2 directions.

1. Ozzie was taught that the husband was the breadwinner and if it took 60 hour weeks or 2 jobs to put food on Harriet's table, so be it. Both Ozzie and Harriet knew that was the way it should be.

2. yeah, there is likely some bias on the part of hiring manager to expect that the male employees are going to be more agreeable when it comes to sucking it up and working 60 hours this week to get the inventory done in household goods.

later in the year when they need to select a new department head, Ozzie's extra work and committment gets factored in.

bagoh20 said...

Many women are willing to work as hard and long as any man and make the sacrifices needed to get ahead. At my business they dominate the management positions, but there are also a lot who believe they can have it all just because they heard it on Oprah.

Men often want more than the have earned as well, but they are much more willing to accept the truth when it's shown to them. Men are discriminated against in many positions, but how often do you see such a mob delusion among them. It requires a Union to convince men to feign victimihood.

rhhardin said...

Walmart's business model found a way to make unemployable people employable.

There's a great lefty drive to undermine it, as a result.

Will a legal doctrine be found or not; stay tuned.

bagoh20 said...

When I say men are discriminated against, I don't mean it in a negative way. "Discrimination" in it's original meaning is essential to survival, the secret to success, and absolutely ubiquitous among us. That's not the problem, it's that we have confused it with being unfair. It can be, but it's necessity is rarely appreciated. Affirmative action type discrimination is true unfair discrimination, and worst of all, state imposed.

shoutingthomas said...

Walmart's business model found a way to make unemployable people employable.

There's a great lefty drive to undermine it, as a result.

Yes. I read a lefty, hippie woman's website from time to time. She lives in Boston, and hates people who (1) have too many children, (2) don't subscribe to her sense of yuppie style, (3) vote Republican, (4) like to attend NASCAR races... hell, I could go on and on.

She's recently signed on to a political group that is attempting to prevent Wal-Mart from opening a franchise in her part of town. It's all about class snobbery. Wal-Mart employs and serves the wrong kind of white people, not the Stuff White People Like variety.

The Drill SGT said...

She's recently signed on to a political group that is attempting to prevent Wal-Mart from opening a franchise in her part of town. It's all about class snobbery.

Wal-mart is planning to open a couple of stores in DC after paying off the right types in various fashions. The local community loves the idea. By community, I mean the poor black locals wo now drive to Virginia to shop at Wal-Mart. They know the prices are lower and can see that the wal-mart staff look alot like them.

The local community organizer types? not so much, they are the organizing arm of the democratic party and have read the talking points on healthcare, and wages.

MayBee said...

It seems like a lot of the anti-Walmartism has died down. It was so en vogue for a while. Remember when John Edwards got busted going into a WalMart for a hot new gaming platform (maybe an Xbox)?
And Michelle Obama had to step down from her well-paid board position at TreeTops Foods because Barack had entered the Dem primaries and was bashing WalMart. TreeTop was a supplier to WalMart (gasp!)

Even popular blogger Armando was forced out at DailyKos, partially because he was a lawyer who had represented WalMart.

This case seems to be a remnant of that particular craze.

Gabriel Hanna said...

In the college town I lived in a few citizens managed to delay the construction of a Super Walmart for about five years.

One their brainwaves to to lobby for a "living wage" law. Local businesses who were on their side against Walmart had to explain to them that no local business could survive paying a "living wage", especially considering that the workforce consisted entirely of poorly motivated and unreliable college students, and the living wage law never went anywhere.

Lem said...

Several of the Justices, of varying ideological cast, appeared troubled about the heavy use that the women’s lawyers have made of statistical models to show that discrimination is actually widespread within the ranks of Wal-Mart’s nearly 1 million workers.

As the 'Hide the Decline' leaked emails showed, math models can be manipulated to show just about any desired outcome.

Mind you, the 'decline' dealt with physical phenomena.. not insidious potential behavior like "discrimination".

rdkraus said...

Brent said...

Why is that this is so clear to so many - that the women need to take their cases individually - and yet so murky to those who desire the big payday they can reap from a big corporation?


Because they know that, if they can proceed as a class action, they've already won the case. If not, they have to slog through each individual case - a lot more work for the lawyers for a lot less money for the lawyers. Almost all of these cases are just extortion schemes.

Rumpletweezer said...

I own Wal-Mart stock. I bought it because I believe the people running it are motivated to make money. You can't make money if you are systematically discriminating against the better workers because they are women.

Shouting Thomas said...

One their brainwaves to to lobby for a "living wage" law. Local businesses who were on their side against Walmart had to explain to them that no local business could survive paying a "living wage", especially considering that the workforce consisted entirely of poorly motivated and unreliable college students, and the living wage law never went anywhere.

The anti-Wal-Mart site I read produced an even crazier argument. Wal-Mart tends to employ (according to the site) under educated women from poor areas who are raised in a culture of service to others.

This violates feminist ideals... you know, being raised in a culture of service to others. It makes women submissive and compliant.

The solution was, of course, to drive Wal-Mart out of business so that these women with their culture of service could not work there. Thus, hastening the onset of the revolution and a world in which the culture of service has been banished.

The Drill SGT said...

Wal-mart wages aren't great, but regardless of the class action suit and the liberal talking points, here's my opinion:

- Wal-Mart hires locals
- Wal-Mart provides better healthcare than you could get at a comparable mom-pop store
- Wal-Mart promotes from within
- Wal-Mart does a great job of training unemployables, who can go on to other places
- You can get promoted to be a Wal-Mart store manager. You can't get to be a Manager of the local Mom-Pop store. The son is going to get that job, regardless

Gabriel Hanna said...

@Lem:

Not to get off topic, but the "hide the decline" emails showed no "manipulation of models to produce desired outcomes". That particular email was about tree ring proxies and had nothing to do with climate modelling.

Of course people can do all kinds of tricks with statistics to make bogus points, I don't deny that; but your example was off-topic and simply a false characterization of what happened.

bagoh20 said...

I though women got paid 60 cents on the dollar to men, why would anybody hire or promote men? Walmart does not have a history of paying one cent more than nessessary for anything. I would think it would be a woman's favorite company.

Simon said...

It's unfortunate optics that the court's female justices are also, coincidentally, liberals. The result—an almost inevitably five to four decision in a case that is in some senses about sex discrimination with the women all on the losing side—seems tailor-made for outraged editorials in the New York Fishwrap. There is, of course, a solution for that, one the next President should take.

cryptical said...

Gabriel:


http://www.youtube.com/watch?v=8BQpciw8suk

Here's a pretty good explanation of the "hide the decline" controversy. The proxy data was shown to be crap.

retire05 said...

Benefits of working at Wal-Mart:

you don't have to have a high scholl education

Wal-Mart will train you and if you are a good worker, you have a job as long as you want it

They offer health insurance even to part time workers, and their children


Wal-Mart has a program to help you pay for your kid's college education

Wal-Mart will help you pay for your college education

Any person working the floor, or the registers, is allowed to apply for department management

Wal-Mart contibutes to a retirement fund

Wal-Mart provides jobs to those who do not have the means to travel to larger cities for work

Wal-Mart gives employees a 10% discount on EVERYTHING sold in the store including groceries

Wal-Mart will work with employees who have school aged children so that they don't have to bear the cost of before/after school care by arranging hours that allow moms to be home with their kids

If Wal-Mart does have a problem it is being overly P.C. In Texas, Hispanics/Blacks were promoted over white males as standard practice.

retire05 said...

Ooops, my fingers are not working this a.m.

I meant high school, not high scholl

Lem said...

@Gabriel Hanna

Understanding Climategate's Hidden Decline

Hagar said...

Re the argument,

Is there a civil or constitutional "right" to promotion in business?

It does seem to me that this class-action lawsuit is an attempt by lawyers to make a large amount of money by taking advantage of a sentiment among groups that dislike Walmart and would not be caught dead shopping there, that the Government should run the store operations rather than the Walton family.

Joe said...

The oddness is due to the fact that this is a class action lawsuit without a class other than women in general. It is hinging on a jury simply awarding the plantiffs because they are women, not because they have actually proved discrimination. Where this suit gets completely bizarre is that some of the plantiffs are managers against whom other plaintiffs are complaining.

In other words, many of the plaintiffs are complaining that they are being discriminated against by management because they are women. Many plaintiffs are those very managers claiming they are being discriminated against because they are women.

This isn't to say that there aren't clear cut cases of discrimination--I believe there are--but those cases should either be made their own class or tried separately.

This highlights the fundamental problem behind class action theory--it assumes that every plaintiff has the same complaint and actually agrees with the lawyers presenting the case. (I'm approaching the conlusion that since class action lawsuits are fundamentally unfair to the defendent and do a poor job of representing interests of the plaintiffs, that they should be banned or at least seriously reduced.)

Simon said...

Hagar said...
"Is there a civil or constitutional 'right' to promotion in business?"

There's a civil right to have your chances of promotion be unaffected by (inter alia) gender, yes. See 42 U.S.C. § 2000e–2(a).

Meade Watch said...

Wal-Mart execs are all just a bunch of Koch whores, anyways.

Hagar said...

So you cannot post a negative sign saying "No Irish need apply."

I think it is "mission creep" to interpret that as a positive requirement that you have x% persons of Irish descent at every level of your business.

ricpic said...

The female mammals on the court are herding together. In accordance with predetermined mammalian laws of behavior. Who are we (mammals that we are) to question the natural order?!

Joe said...

Hagar, we aren't talking about affirmative action, but the notion that IF the only reason a person was not promoted was because they were female, that is unlawful discrimination. (It's also stupid.)

However, you highlight the problem that the plainiffs aren't using eyewitness testimony or evidence of actual discrimination, but statistics. The reason they are doing this is that for the class, that's all they have. The shame is that there certainly are women at Walmart who have been discriminated against solely because they are women and they are being trampled by the simple greed of all the rest (and all this is being promoted by people who simply don't like walmart and unions who have their own axe to grind.)

Pogo said...

"mission creep"

That's the left's method in a nutshell.

Hagar said...

I also very strongly feel that if a business is to be successful - and stay in business - the people responsible for something getting done at every level, must have discretion in hiring and promoting such people as they believe will be most effective and getting the job done.
If the hiring and promotions are relegated to a "Human Resources Dept." that does not know or understand the task at hand, but can only look at the person's "credentials," such as race, creed, sex, national origin, and college credits, that business is also going to need government "protection," it is not going to survive in the wild.

D. R. said...

If that's the argument, shouldn't the plaintiffs have chosen a female lawyer to argue the case?

Simon said...

Joe said...
"Hagar, we aren't talking about affirmative action, but the notion that IF the only reason a person was not promoted was because they were female, that is unlawful discrimination. (It's also stupid.)"

Quite—and that's why I'm dubious that it actually happens. Employers who discriminate based on factors extraneous to job performance lose out on talent and thus revenue, which might lead one to think the behavior self-deterring. Law can generally assume that people act rationally, and so it only needs to intervene to prevent socially unacceptable behavior that enriches the actor; socially unacceptable behavior that imposes costs on the actor is by-and-large self-deterring. Cf. Easterbrook, The Chicago School and Exclusionary Conduct, 31 Harv. J. of L. & P.P. 439 (2008).

And so one must wonder why EEOC would freely give leave to sue (thus exposing defendants to significant litigation costs) in cases like Holland v. Sam's Club, 487 F.3d 641 (8th Cir. 2007), or Grabovac v. Allstate, 426 F.3d 951 (2005), where claims of gender discrimination are easily rejected. This is only slightly less true
in cases like Zimmerman v. Associates First Capital Corp, 251 F.3d 376 (2nd Cir. 2001), where discrimination can be and has been inferred by a jury. I certainly wouldn't say that sex discrimination never happens, and it certainly happened in the past, cf. Ledbetter v. Goodyear, 550 U.S. 618 (2007), but I think we (and particularly the EEOC) ought to view such claims with a more skeptical eye, taking into account the changes in society since Title VII was enacted. The existence of a remedy does not imply ongoing violation of rights.

PaulV said...

Gabriel Hanna, You ignore the fact that the Global Warming Alarmist conspired to hid their data. Very Unscientific to do so. You realize those emails were collected for FOIA request and were illegally withheld until whistleblower leaked them

Smilin' Jack said...

Hagar said...
I also very strongly feel that if a business is to be successful - and stay in business - the people responsible for something getting done at every level, must have discretion in hiring and promoting such people as they believe will be most effective and getting the job done.


Get back in your cave, you troglodyte. We are moving into the radiant future where such thinking is no longer tolerated, and academia is leading the way. Looking at my university's web site, you would think we were a corporation manufacturing something called "diversity"--you have to look long and hard to find any mention of education, much less excellence therein.

jeff said...

My sister is to the left of Castro. She hates Walmart. She thinks its bad for downtown businesses, and pays its employees too little. She also shops at Walmart. I asked her why, she said "it's cheaper there".

Simon said...

jeff said...
"My sister … hates Walmart. She thinks its bad for downtown businesses, and pays its employees too little. She also shops at Walmart. I asked her why, she said 'it's cheaper there'"

It must have been hard to keep a straight face.

Gabriel Hanna said...

@Lem:

Did you read the article you linked to? It backs my characterization completely. It was not about "math models can be manipulated to show just about any desired outcome".

the decline Jones so urgently sought to hide was not one of measured temperatures at all, but rather figures infinitely more important to climate alarmists -- those determined by proxy reconstructions...climate scientists have devised means to measure variations in such ubiquitous materials as lake sediments, boreholes, ice cores, and tree rings to evaluate past temperature trends.


They then employ complex computer programs to combine such “proxy” data sampled throughout a region and plot that area’s annual relative changes in temperature hundreds or even thousands of years prior. By then combining the data sets, they believe they can accurately reproduce hemispheric and global temperature trends of the previous millennia.


Now that you've triumphantly refuted yourself, let's return to the topic.

Gabriel Hanna said...

@PaulIV:

Gabriel Hanna, You ignore the fact that the Global Warming Alarmist conspired to hid their data.

Yep, hid it journals published and distributed in every major university's library and available for download online.

Doubly off-topic, because we're not on Walmart and you're not even on Lem's claim that the emails proved they were faking the outputs of climate models.

Methadras said...

The Drill SGT said...

If they argue that the problem was too much discretion at the store level, isn't the remedy class actions at the store level, where all the plaintiffs have something in common?


If that's the case, then Walmart better start busting out there stores as franchises instead and wash their hands of this nonsense.

john lichtenstein said...

It seems like a win for Walmart here doesn't make the problem go away. They then will face the possibility of suits from the class of retail hourly women staff, women warehousers, women IT staff, ...

abeer ahmed said...

visit us on lifeandstylemag.com
http://whois.domaintasks.com/lifeandstylemag.com