Posted on Monday, April 4, 2011
If the questions earlier this week at the Supreme Court hearing about the huge discrimination suit again Walmart are any indication -- and, with this court, they usually are -- it looks like hundreds of thousands of women are about to lose.
The case is the largest employment discrimination case in history. The women have brought a class action against Walmart alleging systemic discrimination in hundreds of stores across the country. According to the plaintiffs' website, Walmart systematically paid men more and promoted them more often. The class includes upwards of 500,000 women and the possible damages are in the billions of dollars.
Of course, Walmart has fought tooth and nail. The case has been ongoing for a decade and has not yet been to trial. The issue that made it to the Supreme Court was whether the women represented by the class were sufficiently similar to allow them to sue together in a class.
But according to analyses of the oral argument, it looks like the women plaintiffs may lose for another reason: Justice Kennedy does not understand the power of corporate culture.
In the oral argument, Kennedy seemed worried about what he said was an "inconsistency" in their theory of the case. On the one hand, Kennedy queried, the women say that the discriminatory policies came from on-high. On the other hand, the actual decisions on hiring and pay were delegated to store managers. How could it be that the women could be right that the company is responsible for the discrimination when the managers themselves had ultimate responsibility for hiring and promotion?
Kennedy said the argument "faces in two directions." Justice Antonin Scalia -- not a swing vote, but always important in defining the tone of the oral argument -- said he was "getting whipsawed" by the women's argument.
So it doesn't sound like the plaintiffs should be optimistic.
But is their argument so far-fetched? Doesn't their argument make complete sense once you understand the power of corporate culture, or any culture for that matter?
Let's imagine a company permeated by a culture of traditional gender stereotypes. (I'm not saying this actually describes Walmart. That's a matter for trial.) Men are bosses; women are better suited for subservient positions. Men work harder and are more dependable; women are always calling in sick to take care of their children. Men are the primary breadwinners for their families; women's incomes are "extra." You get the idea.
In such a company, would you have to have an employment manual explicitly state that women should get promoted less often or make less money? Of course not.
In fact, how would you put those prejudices into operation? By giving bosses the freedom to exercise those prejudices in whatever way they saw fit.
When a culture of discrimination is pervasive -- whether it be about gender, race, class, or sexual orientation, and whether it be in a business, a school, or society in general -- the best way to give it power is to give people the freedom to act on it.
We should not assume that culture only has power when it is enacted in law by way of company manual, city ordinance, or congressional act. The more powerful a cultural norm, the less it needs such enforcement.
The fact that discretion is present where decisions are made is not a cure for a discriminatory culture. Rather, discretion is its perfect cover.
THE HUFFINGTON POST, By Kent Greenfield, Law Professor, Author