The Supreme Court has been hearing arguments on whether a class action suit on behalf of women employed by Walmart can go forward. Here’s a fairly good summary of the issues involved at this stage, which boil down to whether a class action suit is the proper remedy or whether the women involved should sue the company on an individual basis.
Unfortunately, questions of law such as this sound very boring and picayune. In fact, they are pretty boring and picayune. But they are nonetheless important. If this is allowed to go forward as a class action, it sets a ludicrously broad standard for huge lawsuits of this type, which threaten to financially destroy companies that don’t have a strict quota system for promotion on representative racial and/or gender lines.
There is really no evidence of a discriminatory policy on the part of Walmart, either. In fact, Walmart’s official policy is explicitly non-discriminatory, but promotion decisions are de-centralized and made through individual discretion. The plaintiffs contend that, through some sort of oozing osmosis, these individual decisions become saturated with gender discrimination that flows down from above and is therefore Walmart management’s responsibility.
How did it come to this? How did we get to the point of ignoring actual policy and looking only at equality of outcome as the indicator of what a policy might be? This is the way the “argument” goes [emphasis mine]:
A plaintiff can prove a “pattern and practice” of employment discrimination by showing an unexplained statistical disparity between the composition of the employer’s workforce and the composition of the qualified labor pool from which the employer draws its workforce. A nondiscriminating employer would wind up with a workforce that reflects the demographics of the relevant labor market, absent some unusual circumstances. Of course, that’s just where the analysis starts: If fewer women are qualified for or interested in the jobs in question, the imbalance wouldn’t suggest discrimination. Sophisticated statistical methods can take account of the other factors that might contribute to disparities, like differences in qualifications, interest, or availability.
Once such legitimate factors have been taken into account, it’s reasonable to conclude that any remaining disparity is the result of discrimination.
I’m not so sure how reasonable it is. There are intangibles that are part of promotion decisions that are not gender-based. What’s more, even if is “reasonable” to conclude that the remaining disparity is the result of discrimination, is that conclusion reasonable enough and certain enough to support a legal decision that affects millions of people and could bankrupt a company, as well as leading other companies to promote a number of women beyond their competence level (and in the process discriminate against men) in a frantic effort to avoid a similar fate for themselves?