- The Washington Times - Wednesday, June 22, 2011

ANALYSIS/OPINION:

The Supreme Court on Monday handed down its decision in Wal-Mart v. Dukes, a nearly decade-old class-action lawsuit involving more than 1.5 million women who worked at the retail giant since 1998. The plaintiffs argued that the company showed favoritism to men in decisions regarding pay and promotions, in violation of Title VII of the Civil Rights Act. Two lower courts gave the suit a green light, but the Supreme Court stopped it in its tracks.

The key and most divisive question was whether it could be proved that Wal-Mart systematically and intentionally violated the rights of women it employed. As proof, the plaintiffs offered a study showing statistically significant differences in pay between men and women at Wal-Mart compared with the regions in which they worked and also some anecdotes of managers allegedly making sexist comments. The Supreme Court zeroed in on what should be the critical question in such a far-ranging case, namely: Where is the proof that Wal-Mart, as an institution, broke the law?

Discrimination cases are rooted in hard history, the times when - by some - bigotry and sexism were considered normal and natural. Laws like the 1964 Civil Rights Act sought to address explicit, not implied, social ills. If Wal-Mart managers followed written or even unwritten policies that women were to be paid or promoted differently from men, that practice would be illegal. But there are no such policies. In fact, Wal-Mart has explicit hiring, training and promotion protocols to the contrary. Proof that Wal-Mart “operated under a general policy of discrimination” was “entirely absent,” according to the court. A “social framework” analysis of Wal-Mart by sociologist William Bielby came under withering criticism when its author conceded he “could not calculate whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” As Justice Antonin Scalia trenchantly noted, “if Bielby admittedly has no answer to that question, we can safely disregard what he has to say.”

In her partial dissent, Justice Ruth Bader Ginsburg discounted the requirement for explicit proof of intentional discrimination. “Managers, like all humankind, may be prey to biases of which they are unaware,” she wrote. “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.” This type of collective, unconscious guilt requires no firm proof. It discards the fundamental notion of justice as the consequence of provable individual behavior and lumps all men into the “sexist” category simply by virtue of their being men. In this loose framework, whether male Wal-Mart managers were aware of their “unconscious” sex bias is irrelevant; they are guilty from birth. By that logic, the same should apply to Wal-Mart’s female managers, and for that matter one could as easily - and unfairly - say the fact that Justice Ginsburg is a woman leaves her open to “subconscious biases” in deciding a case of this nature. Victimology is a two-way street.

The high court has taken a stand against assigning wholesale culpability to people of a given race or sex simply by virtue of their membership in it. That’s the very evil civil rights laws seek to rectify.

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