Scott's column today on how Monday's decision in Walmart v. Dukes does a nice job of putting Scalia's opinion into historical perspective. An important exercise because, as he writes, "The idea that discrimination will rarely coexist with policies that are neutral on their face only makes sense if you ignore much of American history…"
Not only does Scalia's opinion ignore American history, also flies in the face of accepted employment practices since the 1970s. Jooey Fishkin at Balkinization explains:
Title VII helped spur both public and private employers to replace subjective, non-meritocratic systems of hiring and promotion with systems that were fairer, more uniform, and more merit-based. Today it is hard to imagine, for example, a big-city police department deciding simply to hire only the sons and nephews of incumbent officers. But at one time such practices were common. What changed was that corporate leaders, HR professionals, public sector managers, and the many, many lawyers who advise all of these people learned that if one does not want to be accused of discrimination -- and for that matter, if one does not want to discriminate -- it helps, a lot, to adopt relatively rational, formalized, uniform, merit-based policies for hiring, performance evaluation, promotion, compensation, and termination. An employer that instead adopts policies of total subjectivity and discretion is needlessly painting a litigation target on its back, so why do it? Or so any competent employment lawyer would have advised, at least until this morning.
Scalia, writing that “left to their own devices most managers in any corporation… would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all," clearly has it backward. But his dismissal of proven fair employment practice sends a very clear message: The Court is not in the business of fighting discrimination. As Scott points out, it hasn't been for some time now.