When Discrimination Is a Passive Activity

Today, the Supreme Court heard the largest gender-discrimination case in history. In Wal-Mart v. Dukes, the Court will decide whether a class-action suit brought by 1.5 million female employees of the retail giant will be allowed to proceed with their action – or whether, as Wal-Mart argues -- the class is too big.

Victoria Pynchon at Forbes has a great piece on the importance of social science in this case, noting that the argument against Wal-Mart contains seminal testimony from sociologist William T. Bielby:

Bielby opined in the lower court that all of the class members were treated unfairly in pay and promotions even though he did not review the individual personnel decisions. In his report to the Court, Bielby opined that “[s]ubjective and discretionary features of the company’s personnel policy and practice ma[d]e decisions about compensation and promotion vulnerable to gender bias.” He also asserted that there were “significant deficiencies in the company’s policies and practices for identifying and eliminating barriers to equal employment opportunity at Wal-Mart.”

Even if you can’t prove that each individual plaintiff was directly discriminated against, aggregate data leads incontrovertibly to the conclusion that either discrimination is at wor, or that women are extremely untalented. As a lower-court judge concluded when he allowed the case to move forward, there were:

[L]argely uncontested, descriptive statistics which show that women working in Wal-Mart stores are paid less than men in every region, that pay disparities exist in most job categories, that the salary gap widens over time even for men and women hired into the same jobs at the same time, that women take longer to enter into management positions, and that the higher one looks in the organization, the lower the percentage of women.

Basically, in terms of gender discrimination, the Court has to decide whether companies will only be held accountable for overt discrimination and not a trend of discrimination. The result would be a green light to discriminate, because without a pointed effort to guard against discrimination, that is the default position.

In the real world, people are held accountable for negligence; in most jobs, saying “oops" or “I wasn’t paying attention” doesn’t cut it. But it does for this pro-business Supreme Court, which will likely decide that the biggest retailer in the world isn’t responsible for sweeping inequality throughout its organization because it wasn’t done purposefully. It almost goes without saying that this is a ludicrous conclusion. If doing nothing means contributing to the problem, then doing nothing makes you guilty. That Wal-Mart is so large is even more reason to make them lead in fighting discrimination, not get away with being, "accidentally," the biggest offender.

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